The Issue Whether the procedure utilized by Respondent, Department of Children and Families (Department), for breaking a tie for the award of a Methadone Medication-Assisted Treatment (MAT) license, pursuant to the “FY 2018/2019 Methadone Medication-Assisted Treatment Needs Assessment Notice of Intended Award for Brevard County, July 10, 2020,” (Notice) is an unadopted rule under section 120.52(16) and thus cannot form the basis for the Department’s decision to award an MAT in Brevard County to Intervenor CFSATC7 d/b/a Central Florida Treatment Centers (Central Florida), pursuant to section 120.57(1)(e).
Findings Of Fact The Parties Metro is a provider of specialized quality care for opioid disorder treatment and operates methadone medication treatment centers nationwide, including the state of Florida, and supports education and understanding of addiction as a disease, so that more patients and communities can find the care that is needed to address opioid addiction. Metro’s MAT counseling and medical services programs are customized to a patient’s needs, and services are delivered in a way that respects their dignity, value, and self-worth. Metro currently has 18 licensed MAT clinics and one satellite clinic in Florida. The Department is the agency with regulatory authority over the provision of substance abuse services. See § 397.321(1), Fla. Stat. These duties include, but are not limited to, the licensing and regulation of the delivery of substance abuse services, including clinical treatment and clinical treatment services such as “medication-assisted treatment for opiate addiction.” §§ 397.321(1) and (6); 397.311(26)(a)7., Fla. Stat. The Department also promulgates rules governing substance abuse providers. See § 397.321(1), Fla. Stat. Central Florida is a Florida corporation licensed to operate MAT clinics within Florida. Central Florida currently operates numerous MAT clinics within Florida. Methadone Medication-Assisted Treatment MAT is the use of medications, in combination with counseling and behavioral therapies, to provide a whole-patient approach to the treatment of substance abuse. In Florida, MAT providers for opiate addiction may not be licensed unless they provide supportive rehabilitation programs such as counseling, therapy, and vocational rehabilitation. See § 397.427(1), Fla. Stat. Generally, methadone treatment requires many patients seeking treatment to come to the clinic every day. During the initial induction period, the patient sees the clinic’s physician and is monitored so that the clinic’s medical professionals can ensure that the patient’s medication is level and stable. Thereafter, a patient comes to the clinic every day to receive a methadone dose until the patient is eligible, through negative urine screens, for a limited supply of take-home medication. The substance abuse regulatory scheme in Florida is designed to provide a statewide system of care for the prevention, treatment, and recovery of children and adults with serious substance abuse disorders. Substance abuse providers, which include MAT clinics, are subject to a strict statutory, regulatory, and licensing scheme, which provides direction for a continuum of community-based services including prevention, treatment, and detoxification services. See Ch. 394 and 397, Fla. Stat. The Department is responsible for the licensure and oversight of all substance abuse providers, and administers and maintains a comprehensive regulatory process for this purpose. Chapter 397, Florida Statutes, and Florida Administrative chapter 65D-30 govern and regulate this process. The Department’s duties include the licensing and regulation of the delivery of substance abuse services pursuant to chapter 397. The licensed services include “medication-assisted treatment for opiate use disorders.” § 397.311(26)(a)7., Fla. Stat. The Department is tasked with determining the need for establishing MAT providers for opiate addiction. There is currently an unmet need for opioid treatment in Florida. Generally, providers of MAT services for opiate addiction may only be established in response to the Department’s determination and publication for additional medication treatment services. See § 397.427, Fla. Stat. The primary reason for the Department’s annual determination of need requirement is to make sure clinics are located where people need them, as timely access to treatment is a recognized public health strategy for addressing substance abuse. Florida Administrative Code Rule 65D-30.014 Rule 65D-30.014 (Rule) specifies the “Standards for Medication and Methadone Maintenance Treatment” in Florida. Rule 65D-30.014(3)1 requires that the following application procedures be followed: 1 The undersigned notes that the Department has amended the Rule since conducting the determination of need and evaluations pertinent to this matter; however, the undersigned will refer to the version of the Rule (amended 6-15-19) that was promulgated and in effect at that time. (3) Determination of Need. The Department shall annually perform the assessment detailed in the “Methodology of Determination of Need Methadone Medication- Assisted Treatment,” CF-MH 4038, May 2019, incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref- 10669. The Department shall publish the results of the assessment in the Florida Administrative Register by June 30. Facilities owned and operated by the Florida Department of Corrections are exempt from the needs assessment process. However, these facilities must apply for a license to deliver this service. The publication shall direct interested parties to submit a letter of intent to apply for licensure to provide medication-assisted treatment for opioid use disorders to the Regional Office of Substance Abuse and Mental Health where need has been demonstrated. The publication shall provide a closing date for submission of letters of intent. Interested parties must identify the fiscal year of the needs assessment to which they are responding and the number of awards they are applying for per county identified in the assessment in their letter of intent. Within seven (7) business days of the closing date, the Regional Office shall notify parties who submitted a letter of intent on how to proceed. If the number of letters of intent equals or is less than the determined need, parties shall be awarded the opportunity to proceed to licensure by completing an “Application for Licensure to Provide Substance Abuse Services” form, C&F-SA Form 4024, May 2019, incorporated by reference and available at http://www.flrules.org/Gateway/ reference.asp?No=Ref-10668. If the number of letters of intent exceeds the determined need, parties shall be invited to submit a “Methadone Medication-Assisted Treatment (MAT) Application to Proceed to Licensure Application” form, CF-MH 4041, May 2019, incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref- 10671. Applications may not be rolled over for consideration in response to a needs assessment published in a different year and may only be submitted for a current fiscal year needs assessment. The Department shall utilize an evaluation team made up of industry experts to conduct a formal rating of applications as stipulated in the “Methadone Medication-Assisted Treatment (MAT) Application Evaluation” form, CF-MH 4040, May 2019, incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref- 10670. The evaluation team members shall not be affiliated with the Department, current methadone medication-assisted treatment providers operating in Florida, or the applicants. The selection of a provider shall be based on the following criteria: Capability to Serve Selected Area(s) of Need and Priority Populations. Area(s) of Need are the counties identified as having a need for additional clinics. Priority Populations are pregnant women, women with young children, and individuals with financial hardships; Patient Safety and Quality Assurance/ Improvement; Scope of Methadone Medication-Assisted Treatment Services; Capability and Experience; and Revenue Sources. Applicants with the highest-scored applications in each county shall be awarded the opportunity to apply for licensure for the number of programs specified in their letter of intent to meet the need of that county. If there is unmet need, the next highest scored applicant(s) will receive an award(s) based on the remaining need and the number of programs specified in their letter of intent. This process will continue until the stated need is met. Regional offices shall inform the highest-scoring applicant(s) in writing of the award. All awarded applicants must submit a letter of intent to apply for licensure to the appropriate regional office within 30 calendar days after the award. If an applicant declines an award or fails to submit the letter of intent within the specified time, the Department shall rescind the award. After the Department rescinds the original award for that selected area of need, the applicant with the next highest score shall receive the award. Awarded applicants must receive at least a probationary license within two (2) years of the published needs assessment connected to their application. See rule 65D-30.0036, F.A.C. for licensure application requirements. Applicants may submit a request to the State Authority and Substance Abuse and Mental Health Program Office for an exception if unable to meet timeframes due to a natural disaster that causes physical damage to the applicant’s building(s). Proof of natural disaster and impact on physical property must accompany the request. Upon receipt of the request for exception and accompanying proof, a one-time extension shall be granted for six (6) months. Providers who are delayed for a reason other than a natural disaster may petition the Department for a rule waiver pursuant to section 120.542, F.S. Rule 65D-30.014(3)(c)2.a. through c. are the portions of the Rule that address the application process of how providers will be selected to apply for licensure, and are applicable to this proceeding. The Rule cites section 397.321(5) as rulemaking authority, and cites sections 397.311(26), 397.321, 397.410, and 397.427 as the laws implemented. Rule 65D-30.014(3)(c)2.a., requires that applicants for a particular clinic be evaluated by industry experts who are independent of the Department, and not Department personnel. Rule 65D-30.014(3)(c)2.b., further provides that industry experts would select the best-suited applicant for each county pursuant to the process set forth in the Rule. The Rule limited the evaluation team to the following five criteria: Capability to Serve Selected Area(s) of Need and Prior Populations. Area(s) of Need are the counties identified as having a need for additional clinics. Priority Populations are pregnant women, women with young children, and individuals with financial hardships; Patient Safety and Quality Assurance/Improvement; Scope of Methadone Medication-Assisted Treatment Services; Capability and Experience; and Revenue Sources. Pursuant to the Rule, the applicants with the highest-rated score in each county shall be awarded the opportunity to apply for licensure for the number of programs specified in the applicant’s letter of intent to meet the need of that county. Neither chapter 397, nor the Rule, contain a procedure to break a tie score between applicants. FY 2018/2019 Needs Assessment The Department conducted an MAT needs assessment for fiscal year 2018/2019, and determined that 42 new MAT clinics were needed in Florida, including one in Brevard County. Six providers, including Metro and Central Florida, submitted letters of intent/applications for Brevard County, which is the subject of the Notice. As described in the Rule—specifically, rule 65D-30.014(3)(c)2.a.—a team of external evaluators received and scored the applications received for Brevard County. The evaluators’ scoring of applications for Brevard County resulted in a tie for the highest score between Metro and Central Florida. The individual scores from the evaluators varied; however, the combined scores for both Metro and Central Florida totaled 641 points each. The individual scoring, as reflected within the Notice, provides as follows: Brevard County Team 1 Evaluation Scores Applicant by County Academic Medical Public Policy Total CFSATC dba Central Florida Treatment Centers 215 211 215 641 Metro Treatment of Florida, LP 205 218 218 641 CRC Health Treatment Clinics, LLC 214 187 212 613 Maric Healthcare, LLC 200 205 198 503 Psychological Addiction Services, LLC 143 177 149 469 Treatment Centers of America 156 120 167 443 The Tiebreaker The Notice further provides the following concerning the tie scores between Metro and Central Florida: The evaluator scoring of applications for Brevard County resulted in a tie for the highest score between Metro Treatment of Florida (Metro Treatment) and Central Florida Treatment Centers (Central Florida). The individual scores from the evaluators varied; however, the combined scores totaled 614 [sic] points each.[2] There is no tie breaking procedure set forth in rule 65D-30.014, F.A.C., or other rules in the Florida Administrative Code. To resolve the tie in this circumstance, the Department reviewed a variety of possible factors in order to recommend an award. These factors included performance indicators, corporate status, and Florida operations as follows: An average score for licensure inspections over the past three years Data from the Department’s Central Registry System from 10/1/2019 to 5/1/2020. Methadone medication-assisted treatment providers are required to register and participate in a Department-approved electronic registry system by rule 65D-30.014(4)(f), F.A.C. The data points considered were: Percentage of a provider’s failure to enter required demographic information Percentage of a provider’s failure to enter required photographs Percentage of a provider’s failure to enter required dosing information Whether the provider operates exclusively in Florida Involvement of women in senior management positions 2 The parties do not dispute that the total combined score should reflect 641, and not 614. The Notice further provided: Award Recommendation Criteria (Top Score Highlighted in Bold Italics) Provider Inspection Average % Missing Demographics % Missing Photograph % Missing Dosing Central Florida Treatment Centers 96.6% 1.6% 3.71% 2.33% Metro Treatment of Florida 93.6% 11.31% 1.62% 9.75% Additionally, the Notice stated: Based on the four performance-based measures, Central Florida demonstrated a higher level of adherence to licensure requirements and entering data into the Central Registry System. In addition, Central Florida operates exclusively in Florida and has a woman as the Chief Executive Officer of the corporation. Based on these factors, the Department recommends award of the opportunity for licensure in Brevard County to Central Florida. Metro challenges the agency statements in the Notice—as quoted in paragraphs 27 and 28 above—that set forth the Department’s tiebreaking procedure, as constituting an unadopted rule.3 Ms. Gazioch testified that, after receiving the scoring for Brevard County from the evaluation team, which was a tie, “the Department made the final decision of who to award to.” She stated that the Rule did not address what the Department should do in the event of a tie. After consulting with officials within the Department, she testified as to the decision the Department ultimately made: 3 The Petition only challenges the tie breaking criteria the Department utilized as an unadopted rule upon which agency action cannot be based, pursuant to section 120.57(1)(e), and does not challenge any other aspect of the Department’s handling of the evaluation of the letters of intent for the Brevard County license. [T]he course of action that the Department took was to award the opportunity to apply for licensure in Brevard County to Central Florida Treatment Centers. And that was based on looking at the average inspection scores, licensing inspection scores, looking at data entered into the central registry and compliance with certain items, such as missing demographics, as well as missing photographs in the central registry system, and also missing dosing in the central registry system. Ms. Gazioch further testified as to the reason the Department considered these particular tie-breaking factors: Because they were factors that are equally – that could be equally measured across, really, any licensed methadone opioid treatment provider. The inspection average obviously speaks to compliance with rule and statue in terms of implementing an opioid treatment program. And then, obviously, the documentation that is entered into the registry is very, very important to make sure that, you know, as clients move through the system and they move from one provider to another, or in the event of a hurricane where somebody might have to get a guest dose, it’s always very important to have the information accurate and updated in the central registry system. So that’s another quality indicator that we felt was important to look at compliance with the information in that system. Ms. Gazioch also testified that as a result of the tie, the Department was concerned that it might not be able to open a clinic in Brevard County, even though “the need was clear based on the needs assessment. So we felt that we were in a position that we had to move forward with a tiebreaker to at least be able to establish one clinic that was needed in that county.” The Department’s decision to award the opportunity to apply for licensure in Brevard County to Central Florida was based on the tiebreaking factors contained in the Notice and listed in paragraph 26 above. Obviously, these tiebreaking factors are not found in the Rule. There is no evidence in the record that establishes whether the Department had time to initiate rulemaking to adopt a tiebreaking procedure for the Rule. There is no evidence in the record that establishes whether rulemaking (to establish a tiebreaking procedure) was feasible or practicable. There is no evidence in the record that establishes whether the Department would have utilized a different tiebreaking procedure in another county, if one had occurred. However, if a tie happened involving an applicant that did not currently operate in Florida, or only recently began operating in Florida, many of the tiebreaking criteria utilized by the Department for Brevard County would be inapplicable. 37, Although the Department developed and utilized the tiebreaking procedures in arriving at its decision to award the opportunity to apply for licensure in Brevard County to Central Florida, the external evaluators scored the applications pursuant to the Rule, and the Department did not change the scores from the external evaluators in arriving at its decision to award the opportunity to apply for licensure in Brevard County to Central Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Department of Children and Families enter a final order dismissing the Petition for Formal Administrative Hearing Involving Material Disputed Facts of Metro Treatment of Florida, L.P., and awarding the MAT license in Brevard County to CFSATC d/b/a Central Florida Treatment Centers. 4 The undersigned also finds instructive the administrative law judge’s determination that a “coin toss” tie-breaking procedure in a competitive procurement that was not supported by the applicable statute or rule was not an unadopted rule because the procedure was “not a statement of general applicability because it was, in essence, an ad hoc decision, for obscure reasons, by which the Department elected to break the tie purportedly involved in the case at hand, solely applicable to these two applicants.” T.S. v. Dep’t of Educ., Div. of Blind Servs., Case No. 05-1695BID, RO at p. 29-30 (DOAH Oct. 7, 2005), rejected in part, Case No. DOE- 2005-1076 (Fla. DOE Nov. 23, 2005). The undersigned notes that the Department of Education, in its final order, rejected the administrative law judge’s findings and conclusions as “immaterial, irrelevant, and unnecessary” on this issue because it determined that there was in fact no tie between the applicants. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 9th day of December, 2020. COPIES FURNISHED: Daniel Ryan Russell, Esquire Dean Mead Post Office Box 351 Tallahassee, Florida 32302 (eServed) John L. Wharton, Esquire Dean, Mead & Dunbar Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 3-231 1400 Village Square Boulevard Tallahassee, Florida 32312 (eServed) William D. Hall, Esquire Dean Mead Suite 130 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Mia L. McKown, Esquire Holland & Knight LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahasee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahasee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahasee, Florida 32399-0700 (eServed)
Findings Of Fact On July 31, 1987, DOA mailed a Request for Proposal, (RFP), to various Health Maintenance Organizations, (HMOs), soliciting proposals for the providing of HMO services in the Orlando service area. Petitioner, Cigna, and the various Intervenors herein, submitted proposals which were opened by DOA on August 28, 1987, with a contemplated date of award of September 14, 1987 and an effective date of contract on January 1, 1988. Section 2 of the RFP defined the general purposes of the procurement as being to meet benefit objectives of DOA and to provide high quality benefits and services to state employees. Specifically, the objectives of the RFP were: A proactive approach to cost containment, including an emphasis on aggressive claims management, utilization review, and superior statistical reporting. Quality medical care which encourages health promotion, disease prevention, early diagnosis and treatment. Stability in the financial structure of offered health plans. Professional, high quality service in all administrative areas including claims processing, enrollment, membership services, grievances, and communications. Competitive premium rates which take into account the demographics and, if appropriate, the claims experience of state employees. Other stated objectives included: Have each county or contiguous group of counties be considered one service area. Award no more than two contracts per service area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Have reciprocal agreements between locations, if an HMO has multiple service areas. Enter into a two year, non-experience rates contract. A provision will be included tying renewal action at each of the two renewals to the consumer price index, (CPI), for medical care services. In order to be considered as a "qualified" proposer, an organization had to be licensed by the Department of Insurance pursuant to Part II, Chapter 641, Florida Statutes. Section IX of the RFP listed five major criteria for evaluation of the proposals. They were: Premium Cost Extensiveness of service area - by county and/or contiguous counties. Plan Benefits as follows: Covered services Limitations and exclusions Co-payments, deductibles, and coinsurance features Range of providers including specialists and numbers of hospitals D. Out of service area coverage F. Grievance procedures Accessibility as follows: Reciprocal agreements Provider locations Number of primary care physicians and specialists, in relation to membership Completeness of proposals The first four of the above objectives were called for by the Legislative action providing for these procurements to be effective January 1, 1988. The fifth, completeness of proposals, was not identified by the Legislature but was added by DOA. The Department reviewed and evaluated all the proposals submitted by Petitioner and the various Intervenors. Each proposer was evaluated by three individual evaluators. Two separate sets of evaluations were performed; the second coming upon the direction of the Secretary who, after the first evaluation and recommendation of award, concluded the standards for evaluation had been too subjective and directed a second evaluation utilizing more objective standards. During this second evaluation process, after the actual evaluations had been done but before the recommendation was forwarded to the Secretary, several computer treatments of the raw scores were accomplished by Mr. Nye because of additional unidentified factors brought to his attention. The final computer run identified that Central Florida Physicians, not a party to this action, received the highest point total followed by Health Options, Pru-Care, and Petitioner, Cigna. Mr. Nye, who had designed and supervised the evaluation process, recommended to the Secretary that Central Florida Physicians, Health Options, and Pru-Care receive the award even though the guidelines called for only two recommendees. Central Florida Physicians was recognized to be in financial difficulties though it received the highest rating, and in order to provide two viable candidates in the event that provider should be disqualified, Health Options and Pru-Care were added. Central Florida Physicians was, in fact, subsequently disqualified due to financial insolvency. This left Health Options and Pru-Care as the two providers with the highest evaluations and the Secretary made the award to them. At the final count, Health Options received a point total of 64.635; Pru-Care, 57.415; and Cigna, 56.83, or a difference of .585 between Pru-Care and Cigna. According to Mr. Black, an administrator with the Department of Insurance and responsible for the licensing of HMOs and other health care facilities, as of January 12, 1988, Pru- Care was not licensed in Volusia or Lake Counties and department records show that Pru-Care has never been or requested to be licensed in those counties. Mr. Beckerink, the Director of Planning for Cigna of Florida, who oversaw Cigna's proposal for the Orlando area and who reviewed DOA's evaluation of the various proposals submitted, carefully examined the evaluation forms for both Cigna and Pru- Care and concentrated on scores relating to costs, benefits, accessibility, service area, and completeness. He noted that Pru-Care received 10 points for proposing service in Orange, Seminole, Osceola, Lake, and Volusia Counties though it is not licensed in the latter two, whereas Cigna received only 4 points for Orange and Seminole Counties. Cigna is licensed in all five counties and has hospitals and physicians in Seminole, Osceola, and Orange Counties. He contends Pru-Care received credit by the evaluators for five counties when it is licensed only in three, an unearned award of 4 points, and Cigna was awarded credit for only two counties when it is licensed in five, an improper denial of 6 points. According to Mr. Nye, the award to Pru-Care was based on its representation it would provide service in five counties. The Department of Insurance could not tell him, at the time, in which counties Pru-Care was licensed. As a result, he took the proposal, which indicated the five counties, at face value. Credit was given only for full counties to be served and Cigna's proposal indicated it would deliver service to two full counties and to only portions of three counties. The evidence indicates that Pru-Care's facilities are primarily in Orange and Seminole Counties with some service offered in the extreme northern portion of Osceola County, too far away for those individuals living in the southern portion of that county reasonably to take advantage of it. Mr. Nye indicates that driving time, which would be the problem here, is not a consideration in assessing accessibility, but merely a factor in quality of service. The department is not concerned with whether it is convenient for the employee to get to the service but merely whether the service will be offered to anyone residing in the county. For this reason, Pru-Care was awarded credit for Osceola county since it proposed to enroll any eligible employee living in the county whether service was convenient to that party or not, whereas Cigna, which limited it's enrollment in certain counties to those personnel living in only a part of the county, was not given any credit for those partially served counties. Mr. Nye admits that had he known Pru-Care was not fully licensed, he would have deferred to legal counsel, but would most likely not award points if a provider is not licensed in a county for which it proposes service. Mr. Breckerink identified additional areas in the evaluation wherein he believes errors were made, the correction of which would result in an adjustment of the award of points. For example, in evaluating plan benefits, the evaluator gave Pru- Care 20 points when only 10 points are available for award without a demonstration of additional services. For emergency room availability, Cigna was awarded 5 points when it should have received 10. In the area of co- payments, Cigna was awarded points and should have received 23. Concerning range of providers, Cigna's proposal lists seven hospitals yet the evaluation form only reflects six, resulting in a shortage of 10 points. As to turnaround time, Cigna indicated it would accomplish payment in 60 days whereas Pru-Care indicated it would in "an average" of two weeks. As a result, Mr. Breckerink, who points out Cigna's actual time is 30 days and it therefore should have been given 30 points, contends there is no opportunity for a valid comparison here since Pru-Care's answer is not responsive to the RFP's call for" an "expected" time. His point is well taken. With regard to accessibility, Mr. Breckerink states that Cigna got only 20 points for its two allowed counties but should have received 30 points since it has hospitals in three counties in the service area. DOA's rationale on this point is identical to that on the issue of full counties served. He also alleges that Cigna was shortchanged by at least 2 points on the number of counties in which specialty providers are represented and by at least 1 point on the number of providers. Mr. Nye admits Pru-Care should have received 5 points instead of 10 for benefits. This would reduce its' raw score in this area from 258 to 253 points. Nye contends, however, that the points awarded Pru-Care for its' turnaround time were correct. He does not consider the question to be a bad one since it was asked equally of all providers and each responded as it saw fit realizing that its response might become a part of a contractual obligation. This reasoning is specious at best and does not address the real question of the fairness and appropriateness of the question asked. Further, Mr. Nye also admitted that under certain circumstances, if Pru-Care were to lose credit for those two counties in which it was not shown to be licensed, the change could result in a difference sufficient to reverse the relative standings of Pru-Care and Cigna. Mr. Breckerink alleges, and Mr. Nye admits that multiple computer runs were made utilizing the raw scores developed by the evaluators before the recommendation as to award was forwarded to the Secretary. On the first run for the second evaluation, Cigna was in second place with a point total of 71.1 and Pru-Care was third with 65.86 points. On the second run, which Nye contends was done to make the computer run consistent with what had been said at the pre-bid conference and in the RFP, Cigna dropped from second place to third with 58. 2 points and Pru-Care went from third to fourth with 57.195 points. In the third run, which ultimately formed the basis for the award, the positions of Cigna and Pru-Care reversed with Cigna dropping to 56.83 points and Pru-Care rising to 57.415. Central Florida Physicians remained in first and Health Options in second. When Central Florida Physicians dropped out due to insolvency, Health Options became number one and the other two each went up one place in the standings without changing relative positions. According to Mr. Breckerink when the mistakes were identified and changes made in the raw scores, Cigna got a total of 23 more points but Pru-Care still got 16 more points than it should have. He contends that if the mistakes were accurately corrected, if Cigna were to get all the points it should and Pru- Care lose all it should not legitimately have, Cigna would come out higher in the overall ranking than Pru-Care. However, he admits there are factors involved about which he does not know which may affect the standings. What is clear is that while Mr. Breckerink could not clearly follow the evaluation procedure, neither can others charged with evaluating it. What is more, notwithstanding the direction given in the objectives of the procurement that only two providers be awarded contracts, the department continuously has been unable to abide by this guideline. In its September 11, 1987 recommendation after the first evaluation sequence, Mr. Nye recommended, for the Orlando service area, awards to Central Florida Physicians, Cigna, and Pru-Care for a part of the service area and an additional award to Health Options and Florida Health Care for other counties in the service area. When the Secretary directed the objective second evaluation, no change was made to the number of providers to be recommended (two), but again, on October 6, 1987, Mr. Nye recommended three providers, Central Florida Physicians, Health Options, and Cigna. No evidence was presented as to why this recommendation was not implemented, but it is seen that on October 26, 1987, Mr. Nye submitted his third set of recommendations to the Secretary, this time recommending only Central Florida Physicians, and Health Options. Being still unable to finalize the process, on October 30, 1987, Mr. Nye submitted his fourth set of recommendations to the Secretary recommending, for the most part, three providers, but specifically recommending Pru-Care for award in Lake and Volusia Counties, where it was arguably not even licensed. No justification or explanation for this vacillation was forthcoming from the Department and the exercise appears to have been clearly capricious.
Recommendation In view of the foregoing, it is, therefore: RECOMMENDED that the Department of Administration issue a Final Order rejecting all proposals submitted for the Orlando service area and readvertise for new proposals if deemed appropriate. RECOMMENDED this 19th day of April, 1988 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5525BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Cigna: 1 - 5. Accepted and incorporated herein. First sentence not a Finding of Fact. Second sentence accepted except for conclusion as to legal license status of Pru-Care. Rejected as a restatement of testimony and not a Finding of Fact. First three sentences rejected as restatements of testimony. Balance accepted with the assumption that "those counties" indicates Lake and Volusia counties. First and second sentences rejected as restatements of testimony. Third sentence accepted. Accepted and incorporated herein. First and second sentences rejected as restatements of testimony. Third sentence accepted as a possibility and, not a fact. First sentence accepted and incorporated herein. Second sentence rejected. Accepted. Accepted. Accepted and incorporated herein. Accepted except for use of word "awarded" in last sentence. Award is a function of the Secretary. A better word would be "recommended". Accepted. Reject Accepted. Rejected. Accepted except for word "significantly". First sentence accepted. Second sentence rejected as not being a proper Finding of Fact. For Respondent, DHRS: 1 - 14. Accepted and incorporated as appropriate. 15 - 16. Accepted. 17 - 19. Accepted. First, second, and fourth sentences accepted. Third sentence rejected as not supported by the evidence. Accepted. Accepted. Accepted except for the last three sub-paragraphs which are not supported by the evidence. Absent. 25 - 26. Accepted except for last sub-paragraph which is rejected as a conclusion. 27. Absent. 28 - 29. Accepted. 30. Accepted. 31 - 37. Absent. 38. Accepted. For Intervenor, Pru-Care: 1 & 2. 3. Rejected as a restatement of testimony and not a Finding of Fact. Accepted. 4 - 5. Accepted. 6 - 7. Rejected as not being a Finding of Fact. 8 - 10. Accepted. 11. Accepted. 12. Rejected as not being a Finding of Fact. 13 - 14. Accepted. 15. Rejected as not being a Finding of Fact except for 16 - 17. last sentence which is accepted. Accepted. 18. Accepted. For Intervenor, Health Options: 1 - 3. Accepted and incorporated herein. 4 - 10. Accepted and incorporated herein. 11. Accepted except for the seventh sentence which is rejected. 12 - 13. Accepted. 14. Rejected as contra to the weight of the evidence. 15 - 16. Accepted. COPIES FURNISHED: David Yon, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Bldg. Tallahassee, Florida 32399 John Buchanan, Esquire 118 South Monroe Street Tallahassee, Florida 32301 Jann Johnson, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. Stanley Chapman, Esquire Ervin, Varn, Jacobs, Odom, & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Larry Carnes, Esquire 515 East Park Avenue Tallahassee, Florida 32301 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the a l ah, of fiderd , 2012, in Tallahassee, Leon County, Florida. 4% ‘ CA kh fo ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed June 26, 2012 2:18 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jeffries H. Duvall Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) CYNTHIA A. MIKOS, ESQ. Allen Dell, P.A. 202 S. Rome Ave. - Suite 100 Tampa, FL 33606 cmikos@allendell.com (Electronic Mail) J.D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the ZS" day of c JA » 2012. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 11-5089MPI CI. NO. 11-1553-000 HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (‘AHCA” or “the Agency”), and Hillsborough Association for Retarded Citizens, Inc. (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The two parties enter into this agreement to memorialize the resolution of this matter. 2. PROVIDER is a Florida Medicaid provider, provider number 024102498 and was a provider during the audit period, January 1, 2009 to December 31, 2009. 3. In its Final Agency Audit Report (constituting final agency action) dated September 2, 2011, AHCA notified PROVIDER that review of Medicaid claims by the Division of Medicaid, Office of the Deputy Secretary, and Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $34,317.55. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 11-5089MPI. Hillsborough Association for Retarded Citizens, Inc. C.l. 11-1553-000 - Settlement Agreement 4. Subsequent to the original audit, in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $27,078.51, plus $5,415.70 in fines and $674.38 in costs for a total due of $33,168.59. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA agree as follows: (1) —AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is twenty-seven thousand seventy eight dollars and fifty-one cents ($27,078.51) on the indebtedness, five thousand four hundred fifteen dollars and seventy cents ($5,415.70) in fines, plus six hundred seventy four dollars and thirty-eight cents ($674.38) in investigative costs for a total of thirty three thousand one hundred sixty eight dollars and fifty- nine cents ($33,168.59). PROVIDER will make an initial payment of eight thousand dollars ($8,000) and the remaining balance to be paid in 6 equal monthly installments. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 6. (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 11-1553-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.I. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $674.38 in Agency costs and $5,415.70 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. | PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this. Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. Hillsborough Association for Retarded Citizens, Inc. C.|. 11-1553-000 - Settlement Agreement 20. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. ROUGH ASSOCIATION FOR RETARDED CITIZENS, INC. Dated: “A727 L ZZ 2012 py. UO CW “CCL FECL (Print name) ITS: SP OPC B22 20 Revi OLN 7 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308-5403 ‘ Dated: G/al 2012 Miller Inspector General Dated: bl f .2012 William H. Roberts Dated: Z f_,2012
