The Issue The issue is whether Respondent properly denied Petitioner's request for immediate developmental disability services, placing him instead on a waiting list for those services due to the unavailability of funds.
Findings Of Fact There are three primary funding sources for persons with developmental disabilities: Individual and Family Supports (IFS program); Home and Community Based Waiver for Persons with Developmental Disabilities (HCBW or Medicaid Waiver program); and Intermediate Care Facility for Developmentally Disabled Clients (ICF/DD program). The IFS program is funded from the state's general revenue. Based upon available funds, this program can pay for summer camps and other services that are not available under the other two programs. The HCBW program provides a variety of services to individuals with developmental disabilities under Section 19.15 (c) of the Social Security Act. It is a federal matching dollar program with approximately 50 percent of the funds furnished by the state and 50 percent of the funds furnished by the federal Medicaid program. Unlike the IFS and ICF/DD programs, the HCBW program can pay for residential habilitation in a home or community setting. The ICF/DD program serves clients in an institutional setting under a Medicaid entitlement program. Unlike the IFS and HCBW programs, which are not entitlement programs, the funds for the ICF/DD program are not limited and do not have to be prioritized. The federal government's Health Care Finance Administration (HCFA) has to approve the state's HCBW program. HCFA's approval serves as a waiver of certain federal Medicaid requirements. The waiver allows the state to serve individuals in community-based settings instead of institutions. The approval process includes identification of the number of individuals to be served, as well as defining the services to be provided and setting forth provider qualifications. In 1998, HCFA approved Respondent's five-year plan for an HCBW program. Under the plan as amended each fiscal year, Respondent makes a commitment to serve the lesser of a target number of individuals or the number of persons authorized by the state legislature. The target number of persons was 15,302, 22,433, and 25,945 for the 1998-1999, 1999-2000, and 2000-2001 fiscal years, respectively. Any difference between the target number of individuals to be served and the actual number of individuals served is based on the funds appropriated by the state legislature. Historically, the state has not been able to serve all individuals identified as developmentally disabled. The persons who are not served are placed on a statewide waiting list. Traditionally, individuals are removed from the waiting list and begin receiving services as funds become available. Prior to the 1999 legislative session and after federal litigation, Respondent identified the number of developmentally disabled individuals who were under-served or receiving no services. Respondent made this effort in anticipation of receiving additional funding to begin eliminating the existing waiting list. At that time, Respondent identified 23,361 persons who were on the waiting list. In 1999, Respondent developed and submitted to the Legislature a two-year spending plan. The purpose of the plan was to eliminate the existing waiting list by addressing the needs of the 23,361 people over a two-year period. Respondent based the plan on data then available and the existing case load. The plan assumed that Respondent would prioritize populations and provide services in an organized manner. The two-year spending plan called for new funding in the amount of $98,167,008 for the 1999-2000 fiscal year. The plan provided for the delivery of additional services to 15,984 people in the first year (July 1, 1999 through June 30, 2000), with the remaining 7,377 people receiving services in the second year (July 1, 2000 through June 30, 2001). The two-year spending plan estimated that additional funding in the amount of $118,215,693 would be required for the 2000-2001 fiscal year to serve the 23,361 people on the waiting list. The two-year spending plan contained the following priorities: Identify those persons in crisis, both in need of residential or community-based care, and serve them in the first six months. [This goal assumed that Respondent would serve 1,590 persons identified as in crisis in the first six months of the 1999-2000 fiscal year.] Identify those persons who are eligible for ICF/DD [Intermediate Care Facilities/Developmental Disabled] (LON [Levels of Need] 3, 4, & 5) and are in need of additional services and provide services (DOE vs. Bush). [This goal assumed that Respondent would continue to serve 1,298 persons already participating in the Medicaid waiver program and begin serving 5,237 additional persons in that program by the end of the 1999-2000 fiscal year.] Provide home and community-based services to persons who wish to move from the private institutions to the community (Cramer vs. Bush). [This goal assumed that certain numbers of people would elect to move from a private ICF/DD or a nursing home to the community program in the 1999-2000 and 2000-2001 fiscal years.] Determine the unmet needs of persons living in residential care, or needing residential care (not crisis) and who are ICF/DD eligible and provide services. [This goal assumed that Respondent would provide enhanced residential care to some persons and new residential care for others.] Determine the unmet need of persons not eligible for ICF/DD (LON 1&2) and begin meeting their needs. [This goal assumed that Respondent would meet the needs of all people then on the Medicaid waiver program in the first year. It also assumed that Respondent would provide services to 25 percent of the population who were not on the Medicaid program in the 1999-2000 fiscal year with the remainder receiving services in the 2000-2001 fiscal year.] In the 1999 legislative season, the Legislature renewed funding for services provided to the existing clients of the HCBW, ICF/DD, and IFS programs. The Legislature also provided additional funding for developmentally disabled persons in the amount of $98,167,008, to meet the priorities, in order, as follows: (a) transitions for those requesting transfers from ICF/DD institutional placements into HCBW residential placements; and (b) meeting the needs of identified under-served participants in the HCBW program. The 1999 Legislature did not provide any additional funding for the IFS program that would allow Respondent to increase the number of persons served in the IFS program without decreasing services provided to existing clients. In a memorandum dated June 22, 1999, Respondent advised its district administrators that the 1999-2000 spending plan was approved. The memorandum described certain tasks that had to be completed, together with relevant time frames, before Respondent could spend the appropriated funds. These tasks included the following: (a) Serve persons in crisis; (b) Serve persons wishing to move from ICF/DD to community placements; (c) Serve persons on the waiver with unmet needs or who are under-served; (d) Serve persons eligible for ICF/DD or HCBS waiver with unmet needs; and (e) Serve persons with limited and minimal levels of need who are not enrolled in the waiver (not enrolled in HCBW and not eligible for ICF/DD or waiver.) The two-year spending plan developed by Respondent in 1999 did not take into consideration the needs of developmentally disabled persons who were not in crisis and who applied for and became entitled to services after July 1, 1999. Therefore, as non-crisis applicants qualified for services after July 1, 1999, Respondent placed their names on a second waiting list. The new waiting list grew at an unprecedented rate due to the redesigned system and the influx of additional funds. During the 2000 legislative session, Respondent requested and the Legislature appropriated sufficient funds to continue the services provided to persons in the 1999 General Appropriations Act and for an additional 7,377 persons to be served in the 2000-2001 fiscal year. Once again the new funds were earmarked as follows: (a) for clients requesting transfers from a ICF/DD program to a HCBW program; and (b) for under- served clients in the HCBW program. The Legislature earmarked all of the new funding for the HCBW program. The Conference Report on House Bill 2145, General Appropriation Act FY 2000- 2001, Section 3, Specific Appropriation No. 344, specifically stated: 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 payments. In accordance with the Legislature's appropriations and proviso language for the 1999-2000 and 2000-2001 fiscal years, Respondent implemented a policy to eliminate the existing waiting list for persons seeking developmental disability services. Respondent properly determined that persons with unmet needs, who were on the waiting list as of July 1, 1999, would be served before any one who applied for services after that date. According to Respondent's policy, the only exceptions would be individuals who were determined to be in crisis. Respondent's proposed budget for the 2001-2002 fiscal year calls for additional funding for clients who applied for services after July 1, 1999. Respondent projects that 6,774 additional persons would become clients or be waiting for services by the end of the 2001-2002 fiscal year--a net increase in the caseload of 2,258 people annually. Until funding becomes available, these additional people will remain on a waiting list. Under the spending plan in effect at the time of the hearing, some individuals who were on the wait list as of July 1, 1999, still are not receiving services for which they are eligible. These persons are in the process of obtaining services and must be served before persons who became or will become eligible after July 1, 1999. Petitioner became eligible for developmental services in November 1999. He does not presently qualify for services funded by the Legislature in fiscal year 2000-2001 for three reasons: (a) he became eligible after July 1, 1999; (b) he applied for IFS services, a funding category for which the Legislature did not appropriate any new funds for new clients; and (c) he is not in crisis. Additionally, Petitioner is currently having his residential training needs met through the Conklin Center, Division of Blind Services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner remain on the list of clients waiting to receive developmental disability services. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of February, 2001. COPIES FURNISHED: Michael Raymond 5268 Isabelle Avenue Port Orange, Florida 32127 Cathy McAllister, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114 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
Findings Of Fact UniPsych is a Florida corporation that provides managed mental health and substance abuse services to Florida residents. The company was founded by Dr. Leo Bradman, a recognized authority in managed mental health care. UniPsych currently provides mental health and substance abuse services and has been providing mental health services, on a managed care basis to the Lake County School District and its employees for the last five (5) years. In July 1995, the Board issued Request For Proposals No. 883 (RFP). The RFP sought proposals for a managed behavioral health program that includes an employee assistance program and a mental health/substance abuse program for the School District employees, their spouses, and their children. The RFP at a minimum requires that each member would be entitled to three visits a year with a counselor. The first visit would be at no charge to the member and a $10.00 charge to the member for visits two and three. The RFP also states in pertinent part: Rights are reserved by the School Board of Lake County to reject any and all proposals and to waive all technicalities. * * * THE SCHOOL BOARD RESERVES THE RIGHT TO ACCEPT OR REJECT PROPOSALS IN WHOLE OR IN PART; AND TO AWARD A CONTRACT IN THE MANNER IN WHICH THE BOARD DETERMINES TO ITS BEST INTEREST. Award of this proposal is intended to be made by the School Board at its regular meeting on August 8, 1995. Conformity to specifications, price, quality of network, quality of program, response to worksheet and financial stability will be determining factors in the awarding of the proposal. All proposals must include the following: Completed Managed Behavioral Health Program Worksheet signed by an authorized representative. Completed Statement on Public Entity Crimes. A copy of your company's Florida Private Review Act Certification. Sample EAP and Managed MH/SA communi- cations to employees. A sample contract stating the provisions that would apply if your company is selected. Any additional information which your company deems pertinent to the proposal. The RFP does not define the term financial stability. The RFP does state a preferred method of calculating price. The preferred method of calculating price is the per employee contracts per month model. Total employee contracts is 2855 employees. Six (6) vendors submitted proposals prior to the submission deadline for RFP 883, including the prior contract holder UniPsych. The Board's plan for evaluating the six proposals was to submit them to the Board's insurance committee and the Board's expert consultant, John D. Robinson. The Board elected to have Mr. Robinson screen the submitted proposals for responsiveness to the RFP. Of the six (6) proposals submitted to the School Board, only the proposals of UniPsych, FPM, and Mathar Behavioral Health Systems, Inc. were deemed to satisfy the criteria of the RFP. These three proposals were sent to the Board's insurance committee so that the committee members could review and interview the three remaining proposers. The committee members as well as the Board had each proposers' proposal as well as a spreadsheet prepared by Mr. Robinson during his screening process. However, the evidence was clear that the committee relied on the price representations and guarantees contained in the spreadsheet. The Committee voted 9-0-1 to recommend the award to FPM. The Petitioner received no votes. The third finalist received one vote. Around August 10, 1995, UniPsych received written notice that the School District's ten-member district-wide health insurance committee decided to recommend that the School Board award its contract to FPM. As indicated earlier in screening the proposals, Mr. Robinson prepared a spreadsheet containing comparative data. The spreadsheet was not meant to be a complete listing of all the items in a company's proposal. He obtained the information contained in the spreadsheet mostly from the proposers' proposals. However, in at least two instances relevant to this case. Mr. Robinson contacted certain proposers over its proposal. Mr. Robinson felt he could seek corrections or clarifications from FPM, and other proposers because "[t]his is a proposal, not a bid. Proposals have the ability to be questioned and clarified " One such call was made to FPM. The call to FPM was made regarding at least two portions of FPM's proposal. FPM stated in Part 3 of its proposal that 14 average employee assistance program (EAP) visits per 1000 members were handled by FPM; and stated in Part 7 of its proposal that it would offer the benefit design outlined in the Board's specifications at $5.00 per employee contract per month. The $5.00 rate would be guaranteed for "two years without significant Consumer Price Index (CPI) increases." FPM was permitted to change the information contained in Part 3 of its proposal to 80-85 average employee assistance program visits per 1000 members because the original number was an error. The evidence did not demonstrate that this change was significant or material. More importantly however, FPM was allowed to change it price guarantee to three years without the CPI provision. These changes contradicted the plain language of FPM's proposal. Mr. Robinson inserted the newly-provided information in his spreadsheet and reported these changes to FPM's proposal to the committee. The change made to FPM's price guarantee was not a mere clarification but a significant change in a material bid term. The evidence was clear that the information in the spreadsheet was utilized and relied on by the Board and its insurance committee. The spreadsheet also contained information on each proposer's price. However, the spreadsheet was unduly detrimental to UniPsych because it overstated UniPsych's price. Health benefit contracts are typically priced under one of two methods: per employee per month (PEPM) or per member per month (PMPM or additive method). Members include the employee as well as any non-employee persons such as children of the employee covered under a health plan. The RFP stated a preference for pricing on a PEPM basis. UniPsych proposed to charge $4.01 on a PEPM basis. In determining UniPsych's PEPM average, the individual employee price was not added onto the price charged per employee and child(ren), per employee and spouse, or per employee and family. However, the spreadsheet erroneously stated all prices in the spreadsheet on a PMPM basis and reflected that UniPsych proposed to charge $4.80 PMPM instead of $4.01 PEPM. Moreover, the price was incorrectly based on an interpretation of documents relating to UniPsych's pricing scheme under its prior contract with the School Board. The erroneous interpretation served to inflate the spreadsheets price calculation for UniPsych. FPM proposed to charge $5.00 PEPM. Mr. Robinson recognized that if UniPsych's price was $4.01 PEPM, it would be substantially different from FPM's price, and could be sufficient to justify an award of the contract to UniPsych over FPM. Given the price guarantee change to FPM's proposal and this error in calculating UniPsych's price, these two factors warrant the rejection of all the bids in this case. As indicated earlier, the financial stability of a proposer was one of the criteria for review of this RFP. Neither the committee nor the RFP members required that any proposer submit financial information with its proposal or in its presentation to the committee. The only information supplied was general company information showing business activity, clients served and providers under contract. The committee members generally only asked the proposers if such information was available and if the proposer was financially stable. At the hearing, the evidence showed that FPM is the wholly-owned subsidiary of Ramsay Managed Care, Inc. (Ramsay). Ramsay essentially has two operating divisions: a health maintenance organization (HMO) division and a mental health and substance abuse division. FPM is Ramsay's mental health and substance abuse operating division. Ramsay's 10Q filing for the quarter ending March 31, 1995, reported that Ramsay had $17,508,893 in assets, $13,236,246 in liabilities, shareholder's net worth of $4,272,647, and $87,802 in losses that quarter. Ramsay has current assets of $2,957,912 and current liabilities of $4,362,714. These two figures give Ramsay a current ratio of 1:1.47. Generally a 1:1 or better ratio is deserved for financially stable companies. However, the ratio by itself does not show financial instability. It is simply a red flag worthy of more scrutiny. Ramsay's largest asset is "goodwill" totaling $9,959,745. Ramsay's 10Q explains that it booked most of this goodwill to account for its acquisition of FPM and two other mental health companies at prices exceeding the book values of those companies. Again the amount of goodwill does not demonstrate financial instability of a company. The 10Q also reflects that FPM proposes to obtain working capital via a line of credit that is collateralized by security interests in FPM's accounts receivable and its stock. The significance of these security interests is magnified by Ramsay's debt service obligations, which (as of March 31, 1995) would require it to pay out $2,211,100 by June 30, 1997, and $2,407,600 by June 30, 1998. Again these figures do not demonstrate financial instability of a company. To confirm its financial stability, UniPsych offered the Committee audited financial statements that were being prepared on a statutory accounting basis. The statements were never requested by the Committee and the Committee never considered financial statements for any of the proposals. However in this instance, the committee did consider the financial stability of all the proposers to its satisfaction. The evidence did not show that the committee's consideration was unreasonable or unfair to any proposer. In fact, the proposers were treated equally in the quality and quantity of financial information sought by the committee. The fact that more information or better information could have been sought is irrelevant since the committee and Board under the RFP specifications were free to determine the level of inquiry they deemed appropriate. If the specification as used by the Board was unclear or undefined to UniPsych, it should have challenged the specifications within the 72 hour period for such challenges under 120.53, Florida Statutes. Finally, the evidence was clear that UniPsych's proposal was a superior program to FPM's. In short UniPsych offered more benefits for less money. Indeed UniPsych's experiences during those five (5) years gave it first-hand knowledge of several ways it could improve and enhance the managed care program specified by the Board's RFP. FPM's proposal fails to offer any enhanced benefits. To enhance and improve the RFP's managed care program, UniPsych offered to provide two (2) additional benefits to the Board: (a) an out-of-network benefit; and (b) a chronic condition benefit. The out-of-network benefit gives potential patients complete choice of out-patient providers and increased choice of in-patient (hospital) providers, by allowing those potential patients to select a provider who is outside a designated network of providers. The chronic condition benefit addresses another restriction that is prevalent in most managed mental health care programs. As is the case with the RFP in issue, most managed mental health care programs routinely fail to require the plan provider to contract for coverage of chronic, recurrent or long-term mental health conditions (chronic conditions). This omission forces chronic condition patients to look to publicly funded community agencies for mental health care. Publicly funded facilities in Lake County have not produced patient satisfaction, partly because they are too few in number or they offer too few services. In addition to these two (2) major benefits, UniPsych's proposal also offered several other valuable benefit enhancements that improved upon the RFP's minimum requirements: 10 additional out-patient visits (above the 20 required by the RFP); and 5 free visits (i.e., no co-payment for members) under UniPsych's Employee Assistance Program, instead of the RFP's requirement of three visits, only the first of which is not subject to co-payment. The evidence did not demonstrate any reason with a basis in fact which would have caused the School Board to reject UniPsych's proposal in favor of FPM. The evidence only hinted at a general dissatisfaction with UniPsych. No basis for this dissatisfaction was shown. Since no basis was given for the Board's decision to reject a proposal which offers more benefits for less money the only conclusion is that the Board acted arbitrarily in awarding the contract to FPM. Therefore, all the proposals should be rejected and the process begun anew.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order rejecting all proposals. DONE and ENTERED this 29th day of January, 1996, at Tallahassee, Leon County, Florida. Officer Hearings 1550 Hearings DIANNE CLEAVINGER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-4827BID The facts contained in paragraphs 2, 3, 4, 5, 7, 8, 13, 14, 15, 17, 19, 20, 21 and 22, of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 1, 6, 10, 11, 16, 18, 24, 25 and 26 of the Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 12 and 23 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8(a) and (b) and 15 of Respondent's Proposed Findings of Fact* are adopted in substance is so far as material. The facts contained in paragraphs 11, 12, 13 and 14 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraph 8(c) of Respondent's Proposed Findings of Fact contained only legal argument. *Paragraphs 7 through 15 of Respondent's Proposed Findings of Fact were unnumbered. Therefore, the Hearing Officer supplied sequential numbers for these paragraphs for reference purposes. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Richard Langley, Esquire Post Office Box 120188 Clermont, Florida 34712-0188 Dr. Thomas E. Sanders, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Frank T. Brogan, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent's certification as a support coordinator under the Medicaid waiver program should be renewed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons to be certified as support coordinators under the home and community based services program. At all times material to the allegations in this case, Respondent, Leonel Mederos, was certified as a support coordinator and did business through his company, Las Americas Support Services. For the period 1992 through 1995, Karlene Peyton was the program administrator for the Department's developmental services program which was responsible for the support coordinators under the home and community based services program. The developmental services program provides services to clients developmentally disabled, e.g., persons who are mentally retarded, have autism, cerebral palsy or spina bifida. Developmentally disabled persons are entitled to receive benefits such as supportive living services, employment services, training services, residential services, and case management services. The Department administers such services pursuant to Chapter 393, Florida Statutes, and Chapter 10F-13,Florida Administrative Code. As part of the system to provide services to the developmentally disabled, the home and community based services program (HCBSP) was established under the Medicaid program. This program adds a support coordinator who is not employed by the Department but who serves as a case manager for the client. In order to qualify under the HCBSP, clients must be Medicaid eligible and have the specified range of disability. For example, a client who is mentally retarded would be evaluated based upon their IQ level and deficiencies in activities of daily living. In the instant case, the persons providing assistance or case management to the developmentally disabled client are designated as waiver support coordinators. The waiver support coordinators are Medicaid providers. When the Department established the waiver support coordinators program, it promulgated statewide policies and written guidelines to regulate the system. It also developed district specific guidelines or policies. One policy, for example, is the limitation on the number of cases assigned to each support coordinator. A waiver support coordinator may not have more than thirty-five (35) clients. Respondent had been an employee with the Department at the time the waiver support coordinators program was established in Dade County. He left the agency to become, and was certified as, a Medicaid waiver support coordinator under the home and community based services program. Respondent qualified Las Americas Support Services as an entity through which waiver support coordinators might work. In order to become certified Respondent was required to complete training requirements related to statewide and district training. Topics covered in the training included Department rules and policies related to the Medicaid waiver program, support plans, plan implementation, services, record keeping, documentation of services and billing, and the use of the Department's computer system. As part of the application package completed on or about May 20, 1993, Respondent executed assurances which are part of the Medicaid provider agreement. The assurances are Respondent's representation to the Department that he will comply with specific conditions. These assurances provided, in pertinent part: 3. All individuals employed as support coordinators will meet the minimum require- ments of a bachelors degree in a human service field and two years of experience with individuals who have a developmental disability. Evidence of these qualifications will be maintained in each individual's employee personnel file. * * * 6. The provider shall maintain financial records in accordance with a recognized system of accounting to accurately reflect the details of the business and shall undergo an annual financial audit of its support coordination program, which may be part of an agency-wide audit. * * * 21. The provider assures that it will maintain the client central record in accordance with 393, F.S. * * * 24. The provider assures compliance with requirements of Chapter 393, F.S. and the proposed DS/Home and Community Based Services Waiver Rule, 10F-13, F.A.C. * * * 27. The provider assures that no more [than] thirty-five individuals will be assigned to a support coordinator who is serving Developmental Services HCBS waiver clients. * * * 29. The provider understands that payment for independent support coordination services is made from state and federal funds and that any falsification or concealment of a material fact may be prosecuted under state and federal laws. The provider further understands that such falsification or concealment is a breach of the DS/HCBS certification and may result in cancellation of same by the department. * * * 31. The provider agrees to return to the department any overpayments received that were disbursed to the provider by the depart- ment. In the event that the department discovers an overpayment has been made, the department will notify the provider of such a finding. Except for provided in No.32 below, the provider agrees to make repayment within thirty (30) days of recipt (sic) of such notification unless the parties are able to agree upon an alternative schedule. Respondent attended and completed the statewide training portion for certification in June, 1993. He completed the district training (with information pertinent specifically to District 11) in July, 1993. He was fully certified to perform as a support coordinator from July 1, 1993 through July 1, 1994. In June, 1994, as part of the recertification process, Respondent executed another assurances agreement. Subsequently, his certification was renewed for the period September 1, 1994 through February 28, 1995. This second assurances agreement, while not identical to the first, in substance had the same provisions as those outlined above in paragraph 17 above. For each client to be served by a waiver support coordinator, a support plan must be developed that identifies the specific services needed by the client. Such plan is developed with input from the client, the client's family, as well as the service providers who are to provide the needed services. The driving force to establish the support plan must be the client's individual needs. Once the support plan is in place the services coordinator must verify that the services are properly and satisfactorily delivered to the client. The coordinator must keep accurate case notes reflecting the date, time, and description of all services provided to the client. The documentation maintained by the services coordinator serves to verify that the services were delivered. As part of the process, the coordinator must also have a cost plan which identifies the expenses budgeted for each service the client is to receive. Every cost plan must be submitted to the Department for approval, and only services which have been approved may be billed by the service coordinator. Every support coordinator is required to maintain case notes of all activities performed on behalf of a client. No activity may be billed to the Medicaid waiver program which is not supported by case notes reflecting the identity of the client, the date of the service, the time of the service and the description of the service. At all times material to this case, the support coordinators billed time based upon quarter hour increments. For example, one through fifteen minutes was billed as one unit, sixteen through 30 minutes as two units, and so on for a total of 4 units per hour. Each support coordinator was responsible for logging their billing units directly into the Department's computer system. Only services which have been approved may be billed and may not include administrative duties such as faxing, copying, transferring case records or other office functions which are included in the rate paid to support coordinators. Each support coordinator is subject to a review wherein Department personnel audit client records to determine compliance with the Medicaid program policy requirements. In November, 1994, Department personnel were reviewing the qualifications of two persons employed as support coordinators through Respondent's company. When Respondent could not produce either the original degrees or authenticated transcripts for the two coordinators (which would evidence the requisite degree required for the coordinators), Respondent was instructed to return all case records assigned to the two workers to the Department. When the case records were returned, the Department discovered billing discrepancies. For example, it discovered Respondent had overbilled for certain clients and had billed for services not allowed. When this was uncovered, the Department elected to perform an in-depth review of the Respondent's business record keeping. The materials reviewed were from Respondent who was responsible for their origin and accuracy. From November 1994 through February 1995, the Department attempted to reconcile Respondent's case records with the billing which had been submitted to the agency by the Respondent. As a result of this audit, it is found the Respondent overbilled by billing more units that were documented. The Respondent overbilled by billing for services which are not allowed and had not been approved. The Respondent overbilled by billing for services provided by an unqualified services coordinators for whom appropriate documentation has not been provided. The Respondent overbilled by exceeding the amount of an authorized payment thereby making a payment not approved by the Department. In addition to the foregoing, the Respondent attempted to serve seventy (70) clients. Such number exceeds the number of clients a services coordinator is authorized to have. Based upon the foregoing, the Department decided on March 1, 1995 not to renew Respondent's certification. Respondent timely challenged that decision. The application and assurances executed by Respondent provided a notice that the failure to comply with the Medicaid waiver policies constitutes grounds for denying or cancelling certification in the program.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order affirming the agency action letter of March 1, 1995, which determined not to renew the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of January, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1997. APPENDIX Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 12, 14 through 23, 25 through 31, and 33 are accepted. With regard to paragraph 13, the assurances contained, in substance, the same provisions but were not identical to the first ones executed by Respondent. With regard to paragraph 24, it is accepted that Respondent received a warning regarding soliciting clients otherwise rejected as irrelevant or not supported by the record. With regard to paragraph 32, it is accepted that Respondent was offered assistance for remediation purposes and was not singled-out for disparate treatment; otherwise rejected as irrelevant or argument or comment. Rulings on the proposed findings of fact submitted by Respondent: 1. Paragraphs 1 and 2 are rejected as argument, comment, or contrary to the weight of the credible evidence. COPIES FURNISHED: Myron M. Gold, Esquire FOX AND GOLD, P.A. 2900 South West 28th Terrace Miami, Florida 33133 Hilda A. Fluriach, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee,Florida 32399-0700
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration, which finds and concludes as follows: 1. The Agency issued the above-named Respondent the attached Administrative Complaint. (Ex. 1) 2. The Respondent requested an administrative hearing, but subsequently withdrew the request for hearing. (Ex. 2) Based upon the foregoing, it is ORDERED: 3. The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. 4. The Respondent’s license is REVOKED. 5. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 6. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 7. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. Filed December 17, 2013 10:36 AM Division of Adnhinistrative Hearings ORDERED at Tallahassee, Florida, on this le day of Meeenher. 2013. Elizabeth Dudek, Secretary Agency for Heglth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregs cing was furnished to the the peso named. below by electronic mail or the method designated on this {2 ay of > 2013. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston Facilities Intake Unit Assisted Living Unit Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Donah Heiberg, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Sharon Jones, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh IJ, Esquire Clay B. Adkinson, Esquire Presiding Officer Adkinson Law Firm Agency for Health Care Administration Post Office Box 1207 (Electronic Mail) DeFuniak Springs, FL 32435 ee ee (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. 3 (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
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
The Issue The issue is whether Petitioner and her family are entitled to services on account of her developmental disability.
Findings Of Fact Petitioner was born on September 8, 1981. Seven years ago, she suffered a severe brain injury as a result of five hours of diabetes-induced seizures resulting from low blood sugar. The incident left Petitioner in an entirely dependent state. Presently, at 20 years old, Petitioner has the intellectual development of a two-year-old and requires constant care, seven days a week, 24 hours a day. Petitioner's present condition actually represents a marked improvement from her condition immediately after the seizures and brain injury. Declining to institutionalize Petitioner, her parents have provided the care that Petitioner has needed to regain her abilities to walk and talk (with considerable difficulty) and to use her arms and hands. Despite these dramatic developments, Petitioner still requires as much care as she required immediately after the injury; she cannot, for example, feed herself or maintain continence. Behaviorally, Petitioner presents a considerable challenge due to her nonexistent impulse control and tendency toward explosive outbursts. At 5 feet, seven inches tall and 200 pounds, Petitioner is strong, and she is capable of attacking with unmediated force. Petitioner's father, who is 48 years old, is six feet, one inch tall and weighs 350 pounds. Her mother, who is 42 years old, is at least the size of Petitioner. When infuriated, Petitioner can physically overpower her parents, as well as her 18-year-old and 22-year- old siblings--all of whom have suffered injuries from Petitioner's attacks. Petitioner's father has suffered cellulitis at the site of an injury that he sustained from one of his daughter's attacks. Petitioner has a very limited attention span and frustrates easily. She does not like being closed in, and, when upset, she strikes out. In addition to attacking her caregivers, Petitioner has damaged property in her outbursts. Her father estimates that Petitioner has broken seven motor vehicle windshields--sometimes while the vehicle was in operation. Several times a day Petitioner becomes agitated and engages in physical outbursts. Managing Petitioner's unpredictable and dangerous behavior has placed considerable demands on her parents. Petitioner's father is the senior pastor of North Palm Baptist Church in Miami. Petitioner's mother is an administrative assistant to the Director of Missions of the Miami Baptist Association. Each weekday during the school year, Petitioner leaves home at 6:00 a.m. to ride a bus to her special school, and she returns by bus at 3:30 p.m. Her father must cut short his workday to meet the school bus each afternoon. For respite care, Petitioner's parents seek the assistance of a person capable medically of supervising Petitioner's severe diabetes, such as administering her injections, and capable physically of handling Petitioner's disruptive behavior. Petitioner's father normally sleeps near Petitioner, who wakes up every time her covers come off, which may happen 75 times a night. The intensive, unending care that Petitioner's parents have had to provide their daughter has caused them great stress. For speech therapy, Petitioner's parents seek assistance to remediate Petitioner's extensive verbal deficits. For two years after the incident, Petitioner was nonverbal. Her ability to articulate has slowly improved, but she remains nonverbal at school. For personal services, Petitioner's parents seek the assistance of a person to meet Petitioner when she gets off the bus from school, give her a snack, bathe her, and attend her until her parents come home from work. This person must have the physical capability of ensuring that Petitioner does not injure herself or others during one of her frequent and unpredictable outbursts. Petitioner and her parents moved to Florida from South Carolina in July 2000. Within a month, Petitioner had applied for developmental disability services. However, Petitioner has not been able to obtain general revenue-funded services or Home and Community-Based Waiver services funded by Medicaid. In rejecting Petitioner's request for services, Respondent has relied on two documents: "Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions" (Spending Plan) and "Developmental Disabilities Program Crisis Identification Tool-- revised 9/2001" (Crisis Identification Tool). Respondent also relies on testimony that Petitioner lacks the funds to provide developmental disability services to all applicants. Although Respondent does not dispute that Petitioner otherwise qualifies for the developmental disability services that she seeks--from both programs--Respondent contends that she does not qualify under the Spending Plan and related documents, which Respondent contends it must apply due to the lack of funds. The Spending Plan states in part: By June 30, 2001, [Respondent] 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, [Respondent] 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 serves 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, [Respondent] 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 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. [Respondent] 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. * * * The legislative proviso language supplied after the hearing by Respondent consists of selections of "Conference Report on SB 2000: General Appropriations for 2001-02--May 1, 2001." The relevant portion states: Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community-Based Services Waiver Services in accordance with a spending plan developed by [Respondent] and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with [Respondent's] policy for serving persons on the waiting list. Two other, related documents are relevant. The Crisis Identification Tool identifies several categories of crisis. The first category is a criminal court order. The second category is a danger to self or others, which requires a current exhibition of "behaviors that": result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others or will result in bodily harm to the person or others that will require emergency medical care from a physician if services are not provided immediately. The other categories are "confirmed abuse/neglect," "homeless[ness]," "caregiver unable to give care," and "health issues." Under the unable-caregiver category, the Crisis Identification Tool adds: The individual's current caregiver is expressing extreme duress, is no longer safely able to provide care for the individual due to advanced age, illness or injury and the individual is in immediate need of services in order to remain living with the caregiver or to locate an alternative living arrangement. . . . The remainder of the Crisis Identification Tool warns applicants that there is a waiting list for services in the Waiver program, even for those applicants classified as in crisis. Developmental Disabilities Program Policy Directive PD#01-07, issued September 25, 2001 (Policy Directive), confirms this warning when it warns: With 2001-02 appropriations and the Spending Plan, "[Respondent] will have funding to enroll up to a total of ten persons per month statewide on the Waiver, who are in crisis." Noting that the Crisis Identification Tool will remain in effect until June 30, 2002, the Policy Directive emphasizes that "[t]his policy will clarify the procedures used in determining the ten crisis cases per month statewide in accordance with the 2001-2002 Spending Plan." The Policy Directive describes the procedures for completing and examining a Crisis Identification Tool. The Policy Directive notes that, for applicants posing a danger to self or others, the District's behavioral analyst, local review committee chair, or other appropriate behavior analysis professional must review the Crisis Identification Tool and make a recommendation. After completing its tasks, the District committee sends the Crisis Identification Tool to the Developmental Disabilities central office in Tallahassee. The central office meets one week monthly, through June 2002, to "determine individuals in most critical need." The Policy Directive adds that the "[i]ndividuals who were not selected . . . will be carried forward and reconsidered each month until they are determined to be one of the ten crisis cases for a month or they are served in accordance with the spending plan." In the alternative, the central office may also find that the individual is "not . . . in need of immediate waiver services" and inform the individual of its finding. As noted in the Preliminary Statement, Petitioner seeks developmental disability services in DOAH Case No. 02-1238 and in DOAH Case No. 02-1241. The Developmental Disabilities Hearing Request described in the Preliminary Statement distinguishes between two programs based on funding sources: Medicaid waiver and general revenue. DOAH Case No. 02-1241 requests services under the Home and Community-Based Services Waiver program, in which the federal government has provided Florida with funds, under a waiver of institutionalization requirements, for certain developmental disability services to eligible persons. DOAH Case No. 02-1238 requests services under a state program in which Respondent uses largely, if not exclusively, general revenue funds to purchase certain developmental disability services for eligible persons. The focus of both these cases has not been on Petitioner's general eligibility, but on Respondent's limited funds and Petitioner's eligibility based on spending-prioritization policies that Respondent has adopted and the Legislature has approved. The Spending Plan, Crisis Identification Tool and legislative proviso language approving the Spending Plan all expressly pertain to the Waiver program. The Spending Plan addresses the relationship between the Waiver program with the general revenue-funded program, which is identified at least partly as Individual and Family Supports funding, by warning that persons who have refused Medicaid Waiver-funded services or who are even "awaiting enrollment" in the Waiver program may no longer obtain general revenue-funded services. Under the Spending Plan, Crisis Identification Tool and legislative proviso language, Petitioner is properly denied developmental disability services under the Medicaid Waiver-funded program. In addition to confirming the insufficiency of funds in the Waiver program, these documents demonstrate that Petitioner fails to satisfy a prioritization criterion that could gain her earlier funding. Arguably, Petitioner was entitled to classification as an individual in crisis, either due to her posing a danger to her self or others or due to the "extreme duress" suffered by her parents as caregivers. However, the record permits no basis to overturn the decision of Respondent's central office that, for each month, other crisis applications posed greater urgency. Although the central office should have maintained Petitioner's Crisis Identification Tool for reconsideration each month, the record permits no basis to revisit any of the central office's decisions during the ensuing months, and the term of the procedures governing the use of the Crisis Identification Tool expired at the end of last month. However, the Spending Plan, Crisis Identification Tool, and legislative proviso language do not address the general revenue-funded program. Petitioner is eligible for developmental disability services covered by this program. Respondent's proof of lack of funds in this program is itself insufficient, unsupported by the documentation that accompanies Respondent's same claim as to Medicaid Waiver-funded services.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for covered developmental disability services in DOAH Case No. 02-1238 and denying Petitioner's application for developmental disability services in DOAH Case No. 02-1241. DONE AND ENTERED this 10th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 10th day of July, 2002. COPIES FURNISHED: 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 Reverend Ronald Satterwhite Qualified Representative 8260 Northwest 172nd Street Hialeah, Florida 33015 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest Second Avenue Suite N-1020 Miami, Florida 33128
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, in making a preliminary decision to award a contract for the subject services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Also at issue is whether Petitioner’s response to the subject Request for Proposal (RFP) was responsive and whether Petitioner has standing to bring this proceeding.
Findings Of Fact Pursuant to Section 409.902, Florida Statutes,1 the Respondent is the state agency charged with the responsibility and authority to administer the Medicaid program in Florida. On February 20, 2007, Respondent issued the RFP to select a vendor for the Florida Medicaid HIV/AIDS Disease Management Program. Cathy McEachron, Director of Respondent’s Procurement Office, served as the Issuing Officer for the RFP. The RFP requests that vendors submit proposals to provide disease management (DM) services to Florida’s Medicaid patients suffering from HIV/AIDS outside of Broward and Duval Counties (where Medicaid reform has been enacted) as well as services under the Project AIDS Care Services (PAC services) throughout the state. DM involves registered nurses who assess a patient’s condition, develop a plan of care, and implement that plan to ensure that the patient receives the care he or she needs. There are two goals or reasons for having a DM program. First, a DM program helps to hold down costs because the enrollees in the program (HIV/AIDS patients) who follow a plan of care are less likely to require more costly treatment, such as hospitalization. Second, DM tends to improve the outcome for the patients being managed. By memorandum from Roberta Kelly of Respondent’s Bureau of Health Systems Development, Respondent explained why an invitation to bid was not being used for the subject procurement: The Agency [Respondent] has a solid and satisfactory history with its contracts for HIV/AIDS disease management. Program evaluations and outcome measurements have shown the services to be beneficial to the health and outcomes of Medicaid enrollees while helping to control the costs of medical care. Given past performance the Agency knows that vendor qualifications, experience, and quality of services are more important than price for the procurement of said services, therefore a Request for Proposals is the appropriate method for procurement. There was minimal confusion as to the term of the RFP. In one place, the RFP indicated that it was for a one-year term while in other parts of the RFP the reference was to a two-year term. That erroneous statement was corrected. Proposed vendors were clearly notified by an addendum that the term was for two years. The addendum superseded the erroneous statement that the RFP was for a one-year term. Following the receipt of proposals, the two responding vendors were e-mailed about a possible change Respondent was contemplating to the scope of the services. The inquiry was whether the contemplated change, if put into place, would change the response of either vendor. Respondent made no change to the RFP. The subject e-mail did not flaw the procurement process. The RFP was divided into three parts: a Transmittal Letter, a Technical Proposal, and a Cost Proposal. The scores for all three parts were combined for the evaluation. Two responses to the RFP were received. Petitioner filed a response, as did Intervenor. MANDATORY CRITERIA Attachment E of the RFP, entitled Evaluation Criteria, provides in paragraph E.1 the following: Responses to this solicitation will be evaluated against the mandatory criteria found in Part I, Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. The checklist for the Mandatory Criteria is set forth in Part I of Attachment E (page 3 of 11). Four items are listed on the checklist with Item Three having four subparts. Only Items Three and Four are relevant to this proceeding. Item Three includes as a mandatory criteria that the transmittal letter include a copy of the vendor’s current accreditation. Item Four asks whether the response included a three-page Cost Proposal, as required in Section C.38. These mandatory requirements will be discussed in more detail below. PETITIONER’S HISTORY Petitioner is a newly formed corporation. Its parent corporation, AIDS Healthcare Foundation, Inc. (AHF), is the incumbent provider of the services sought by the RFP pursuant to a contract with Respondent. There has been no issue with regard to the quality of care provided by AHF under that contract. AHF caused Petitioner to become incorporated because the RFP contained a provision that a direct pharmaceutical provider could not be considered for the contract. AHF is a direct pharmaceutical provider. Petitioner is not a direct pharmaceutical provider. Petitioner’s response to the RFP proposed to transfer the program (personnel, facilities, accreditation, and other assets) that AHF is currently utilizing to provide the services required by the RFP from AHF to Petitioner. Further, Petitioner’s financing is dependent on AHF. PETITIONER’S COST PROPOSAL Attachment J to the RFP is incorporated herein by reference. Pursuant to Attachment C.38C (Attachment C, page 22 of 23) under the heading: “Cost Proposal (Must be submitted on page provided as Attachment J.[2]),” the following appears: The respondent [the vendor submitting the proposal] shall submit a cost proposal, as outlined in Attachment J., with each technical response. The cost proposal shall be labeled and tabbed separately and shall include a proposed unit price for each specified PAC served, a per member - per month case management fee for DM Program enrollees, and a detailed budget. The annual cost for each year will be added together to arrive at a two-year total cost, which shall not exceed $9.95 million. FAILURE TO SUBMIT ATTACHMENT J, COST PROPOSAL, INCLULDING THE DETAILED BUDGET FORM, SHALL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR’S RESPONSE. On page 1 of Attachment J the vendors were instructed to complete and return three tables. Table 1, pertaining to costs for PAC services, and Table 2, pertaining to costs for DM services, are found on page 2 of Attachment J. Table 3, pertaining to the detailed budget, is found on page 3 of Attachment J. Table 1 required the vendor to propose a unit price for each PAC service included in the RFP, to calculate the total cost for each category of service, and to show the grand total for all categories of PAC services. Table 1 included three categories of services. For each category of service, Table 1 provided an anticipated enrollment figure that was to be used in calculating the total cost for each category of service and in calculating the grand total for the PAC services. The total cost for a category of service was to be determined by multiplying the unit price by the anticipated enrollment figure. For the category “PAC Assessments”, Table 1 provided the anticipated enrollment figure of 6,334. For the category “Re-Assessments”, Table 1 provided the anticipated enrollment figure of 6,334. For the category “Exception Request Processing”, Table 1 provided the anticipated enrollment figure of 4,000. Table 1 required the vendor to calculate the grand total of the proposed costs for the three categories of PAC services. Table 1 also contained the caveat that the grand total could not exceed the sum of $950,000. Petitioner inserted a proposed per unit cost for each category. For the category “PAC Assessments”, the unit cost was $100.00. For the category “Re-Assessment”, the unit cost was $70.00. For the category “Exception Request Processing”, the unit cost was $25.00. However, in calculating the total cost for each category of service and the grand total for the PAC services, Petitioner did not use the anticipated enrollment figure set forth in Table 1, but, instead, used a lower anticipated enrollment figure that does not appear anywhere in the RFP. Instead of using Respondent’s anticipated enrollment figures, Petitioner made its own estimate of those figures. For the category “PAC Assessments”, Petitioner used the anticipated enrollment figure of 5,278 (as opposed to Respondent’s figure of 6,334) and the unit price of $100.00. By using its lower anticipated enrollment figure, Petitioner calculated the sum of $527,800.00 as the total cost for this category of service. Had it used Respondent’s anticipated enrollment figure, the calculation would have been $633,400.00. For the category “Re-Assessments” Petitioner used the anticipated enrollment figure of 5,000 (as opposed to Respondent’s figure of 6,334) and the unit price of $70.00. By using its lower anticipated enrollment figure, Petitioner calculated the sum of $350,000.00 as the total cost for this category of service. Had it used Respondent’s anticipated enrollment figure, the calculation would have been $443,380.00. For the category “Exception Request Processing” Petitioner used the anticipated enrollment figure of 2,664 (as opposed to Respondent’s figure of 4,000) and the unit price of $25.00. By using its lower anticipated enrollment figure, Petitioner calculated the sum of $66,600.00 as the total cost for this category of service. Had it used Respondent’s anticipated enrollment figure, the calculation would have been $100,000.00. By using the lower anticipated enrollment figures, Petitioner was able to propose a higher per unit cost for each category of service and stay below the not to exceed figure of $950,000. Petitioner’s grand total for the PAC services, using its anticipated enrollment figures, equaled $944,400.00. Had Petitioner used the Respondent’s anticipated enrollment figures for each category of service, the grand total would have been $1,176,780.00, which exceeds the not to exceed figure of $950,000.00. Petitioner completed Table 2, pertaining to DM services as instructed. Table 2 contained the caveat that the grand total for DM services was not to exceed $9,000,000.00. The grand total of the proposed services as reflected by Table 2 was $8,999,965.00, which is below the not to exceed figure. However, if Petitioner had used the Respondent’s anticipated enrollment figures in calculating the grand total costs for the PAC services in completing Table 1, its proposed total costs for the PAC services ($1,176,780.00) and its proposed costs for the DM services ($8,999,965.00) would have totaled $10,176,745.00, which exceeds the do not exceed figure of $9,950,00.00, for all categories of services. Section 287.012(26), Florida Statutes, defines the term “responsive vendor” as being “. . . a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” The undersigned rejects the argument that Petitioner was free to use its own anticipated enrollment figures since it would not be able to collect more than the not to exceed figure of $950,000.00 for the PAC services regardless of the unit price and regardless of the number of enrollees. Petitioner’s use of the lower anticipated enrollment numbers enabled it to propose a higher unit cost than it could have proposed had it used Respondent’s anticipated enrollment figures, thereby providing Petitioner with an unfair competitive advantage. This higher unit cost would enable Petitioner to collect its funds more quickly during the term of the contract than it could have with a lower unit cost rate. The higher unit cost rate would also have resulted in Petitioner collecting more than it could have if the actual number of enrollees is less than the Respondent’s anticipated enrollment figure.3 Petitioner’s failure to use the Respondent’s anticipated enrollment figure in completing Table 1 of Attachment J is a major deviation from the solicitation document that renders Petitioner’s cost proposal non-responsive. Petitioner is a non-responsive bidder because the cost proposal is a mandatory item. After the deadline for the submission of responses, Ms. McEachron reviewed Petitioner’s response and Intervenor’s response to determine whether the responses met all mandatory criteria. Ms. McEachron determined that both responses met all mandatory criteria. Ms. McEachron testified at the formal hearing that she made a mistake in reviewing Petitioner’s cost proposal in that she did not notice that Petitioner had not used Respondent’s anticipated enrollment figures in completing Table 1 of Attachment J. Ms. McEachron testified, credibly, had she not made that mistake, she would have determined Petitioner’s response to be non-responsive and that Petitioner’s response would not have been submitted for further evaluation. PETITIONER’S LACK OF ACCREDITATION Attachment D, page 2 of the RFP requires that a vendor must be experienced in the delivery of HIV/AIDS services, accredited by a recognized entity such as URAC, JCAHO, or NCQA, and be a financially sound DM organization. As stated above, the Mandatory Criteria set forth in Attachment E, page 3 of 11, requires that a vendor’s transmittal letter include a copy of the vendor’s current accreditation. Petitioner did not include a copy of its accreditation in its transmittal letter. Instead, Petitioner inserted the following: AIDS Healthcare Foundation (AHF), the current holder of the Disease Management contract, operates that program with NCQA accreditation. As laid out in detail in the application, all of AHF’s Disease Management operations in Florida are being transferred to AHFDM [Petitioner], a wholly separate corporation from AHF. Under the rules set forth by the NCQA, the accreditation can be transferred within 30 days by applying for transfer to the NCQA. AHFDM [Petitioner] is in the process of making this transfer. The transfer will be accomplished by the anticipated July 1, 2007 contract start date. Respondent and Intervenor correctly argue that Petitioner’s failure to have accreditation prior to submitting its proposal is a deviation from the RFP specifications.4 While Ms. Stidman’s testified that AHF had agreed to this procedure, there was no documentary evidence to support her testimony. Petitioner’s failure to comply with this mandatory item rendered its response non-responsive. INTERVENOR’S 2004/2005 FINANCIAL STATEMENT Petitioner challenged the sufficiency of Intervenor’s response to the requirement of Attachment C, paragraph 38.B.2.c, (Attachment C, page 15 of 23) that each vendor responding to the RFP file “[a] copy of the vendor’s most recent financial statement or audit” (the financial requirement). In response to the financial requirement, Intervenor submitted an audited financial statement for the Intervenor and its subsidiaries for the calendar years 2004 and 2005. Because Intervenor’s subsidiaries were included, the audited financial statements were considered to be consolidated financial statements. The audited financial statement provided by Intervenor for those two years was the most recent audited financial statement available to Intervenor. Intervenor had more recent financial statements, but those financial statements were not audited. Ms. McEachron, as the agency procurement director, interpreted the financial requirement to require a vendor to provide its latest unaudited financial statement or its latest audited financial statement without regard to whether one statement was more recent than the other. Ms. McEachron testified that Intervenor complied with the financial requirement because it submitted its most recent audit despite the fact that the audit was for the years 2004/2005. Ms. McEachron’s interpretation is consistent with the plain reading of the provision. Ms. Newman evaluated Intervenor’s financial condition based on the information that had been provided to her by Intervenor. Ms. Newman testified that she was not concerned that the audited financial statement was for years 2004/2005. She further testified that audited financial statements are frequently required for the type evaluation at issue in this proceeding. Ms. Newman awarded Intervenor a rating of 2, which signified that its financial condition, based on the information available to her, was below average. Ms. Newman has, in other procurements, used a score of 2 or below to reflect her opinion that the bidder is “not financially stable.” There was no evidence as to the evaluation criteria for those other procurements. Ms. Newman testified that for the subject procurement, she did not evaluate Intervenor as being “not apparently financially stable” she evaluated its financial condition as below average.5 Mr. Law, who has considerable experience dealing with agency procurements, reviewed Intervenor’s 2004/2005 audited financial statement on behalf of Petitioner. Mr. Law opined that the audited financial statement demonstrated that Intervenor was not a responsible vendor, and explained his opinion. Mr. Law believed that Intervenor had insufficient working capital to perform the contract. He was concerned that Intervenor had a net profit of $29,732.00 in 2004 and a net loss of $273,213.00 for 2005. At the end of 2004, Intervenor had working capital of $512,000.00. At the end of 2005, Intervenor’s working capital had been reduced to approximately $265,000.00. Mr. Law opined that Intervenor would need $660,000.00 in upfront working capital to fund the contract in the first year.6 Mr. Mercer, who also has extensive experience, reviewed Intervenor’s 2004/2005 audited financial statement on behalf of Intervenor. Mr. Mercer opined that the financial statement Intervenor provided as part of its response to the RFP demonstrated that Intervenor was a responsible bidder, and explained the rationale for his opinion. Mr. Mercer testified to the following: Intervenor had a Current Ratio of 3.23 at the end of 2005, which showed a strong working capital relationship;[7] Intervenor needed working capital of $250,000.00 to fund the contract. It had working capital in the amount of $265,000.00 at the end of 2005;[8] Intervenor had a positive asset to debt ratio of .32; Intervenor was creditworthy based on its ratio of assets to liabilities, its amount of working capital, its positive ratio of assets to liabilities, and its history; Intervenor’s Defense Interval ratio of 25 days was average;[9] Intervenor’s Debt to Equity ratio of .46 was positive; Intervenor’s Collection Period of 19 days was positive;[10] Intervenor had the necessary capital to purchase needed equipment; Intervenor’s financial condition would benefit by the subject contract; and The appearance of Intervenor’s financial strength at the end of 2005 was diminished by the payment of discretionary bonuses to avoid taxation at the corporate and individual shareholder level. Both Mr. Law and Mr. Mercer agreed that Intervenor would need an infusion of start-up capital for the contract. Both agreed that most lenders would require more recent financial information than the 2004/2005 audited financial statement prior to lending money to Intervenor. Mr. Mercer opined that Intervenor would require approximately $150,000.00 in capital as opposed to Mr. Law’s opinion that $660,000.00 would be needed. Mr. Mercer testified that Intervenor was creditworthy based on its 2004/2005 financial statement. Mr. Law testified that further information would be required to make that determination. The undersigned has carefully considered the testimony of Ms. Newman, Mr. Law, and Mr. Mercer. The conflicting evidence is resolved by finding that Ms. Newman correctly evaluated Intervenor’s financial condition based on her review of the 2004/2005 audited financial statements. The 2004/2005 audited financial statement reflected that Intervenor’s financial condition is “below average.” The financial statement did not establish that Intervenor was a non-responsive bidder due to a lack of financial stability to complete the contract. IS INTERVENOR A RESPONSIBLE BIDDER? Section 287.012(24), Florida Statutes, defines the term “responsible vendor” as follows: (24) “Responsible vendor” means a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance. Section 287.057(2)(b), Florida Statutes, requires that contracts be awarded to responsible vendors as follows: (b) The contract shall be awarded to the responsible and responsive vendor, whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain documentation supporting the basis on which the award is made. Six subsidiaries were shown on the consolidated financial statement submitted by Intervenor. Each subsidiary was a limited liability company that Intervenor had established. Each subsidiary was established to provide DM services in a specific state pursuant to a subcontract between the subsidiary and a company named McKesson Health Solutions, LLC (McKesson). McKesson, in turn, had a contract with the specific state to provide DM in that state. During 2005, Intervenor controlled subsidiaries that had subcontracts with McKesson to provide DM services in each of the following states: Mississippi, Montana, New Hampshire, Texas, and Washington. The 2004/2005 audited financial statement demonstrated that in 2005, approximately 87 percent of the total revenues on a consolidated basis came from the five subsidiaries for the states mentioned above, and not from Intervenor. Intervenor’s reliance on these subsidiaries for income was heavy. For the year ending December 31, 2005, the consolidated financial statement reflected a negative net income of $273,000.00. For the year ending December 31, 2004, the consolidated financial statement reflected a small profit. The consolidated financial statement reflected a downturn between those two years. At the time Intervenor filed its response to the RFP, its contracts with McKesson had been terminated and each of its subsidiaries had been dissolved.11 Ms. Newman testified that it would be highly unlikely that the audited consolidated financial statement for the years 2004/2005 fairly represented the financial condition of Intervenor in 2007. Petitioner proved that Intervenor’s financial condition experienced substantial and material changes between the ending date of the audited financial statement and the date of Intervenor’s response to the RFP. Because of those changes, Respondent has relied on stale financial information. Respondent does not, without updated financial information, have sufficient information to determine whether Intervenor is a responsible vendor with the requisite financial stability to perform the subject contract.12 While Respondent acted within its discretion in allowing a vendor to use stale financial information as part of its evaluation process, it does not have such discretion in determining whether a vendor is a responsible vendor within the meaning of Section 287.012(24), Florida Statutes, as required by Section 287.057(2)(b), Florida Statutes. The statutory requirement that an agency deal only with responsible vendors cannot be waived by a vendor or ignored by an agency. Petitioner established that Respondent failed to ensure that Intervenor is a responsible vendor.13 The evidence established that but for the missing up- to-date financial information, Intervenor is a responsive bidder.14 THE EVALUATION For a procurement of the nature and dollar amount of this procurement, Respondent’s agency head is required by the provisions of Section 287.057(17)(a), Florida Statutes, to appoint: (a) At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. By memo dated March 16, 2007, Thomas W. Arnold, Respondent’s Deputy Secretary for Medicaid, appointed the following to serve on the evaluation team for the subject procurement as follows: Brenda Jones-Garrett, Medical Health Care Program Analyst, Bureau of Medicaid Services, Division of Medicaid. Responsible for the Project AIDS Care Waiver service oversight. Ms. Garrett-Jones previously worked in AHCA’s division of Quality Management and had been working with HIV/AIDS prior to coming to the Agency. Talisa-Hardy, Clinical Program Manager, Bureau of Medicaid Pharmacy Services. Dr. Hardy has a doctorate in pharmacy and has been practicing for seven and a half years in several areas including HIV/AIDS. Vivian Booth, Nurse Consultant, Bureau of Medicaid Health Systems Development. While employed with AHCA, Ms. Booth provides RN consulting service and is the contract manager for the Minority Physician Network Program. She has served on the HIV/AIDS Title II Collaborative as the Agency representative for approximately one year, and participated in the on-site monitoring of the HIV/AIDS disease management program, Positive Health Care. Gayle McLaughlin, Nurse Consultant, Florida Department of Health, HIV/AIDS Bureau. Dr. McLaughlin has worked for seven years as a nurse consultant with the Bureau of HIV/AIDS. She functions as a primary clinical resource for public and private sector medical providers involved in HIV/AIDS care. She is also currently a member of HRSA Title II Collaborative which is a national initiative focused on improvement of the quality of HIV/AIDS care. Kay Newman, Senior Management Analyst, Office of the Deputy Secretary for Medicaid. Ms. Newman is a certified public accountant, who will evaluate the solvency of the respondents via review of their financial statements. Ms. Newman’s evaluation was limited to the financial evaluation. There was no contention that Ms. Newman lacked the qualifications and training to conduct her evaluation. As discussed above, Ms. McEachron reviewed the proposals to determine whether the vendor met all mandatory items and Ms. Newman evaluated the vendors’ financial statements. Paragraph E.2 provided instructions as to how each response was to be evaluated. The following point system was to be utilized: Points 0 The component was not addressed. The component contained significant deficiencies. The component is below average. The component is average. The component is above average. The component is excellent. Part II of Attachment E (page 4 of 11) set forth the areas of the proposal to be evaluated, gave the maximum raw score possible for each area, and provided a weight factor for each score. Each evaluator could award a maximum of 325 points for a proposal. The four evaluations would then be added for the final tally. The “Detailed Evaluation Criteria Components” are set forth in Attachment E, pages 5–11. Attachment D of the RFP discusses in detail the Scope of Services to be provided and the requirement that staffing levels be sufficient to complete all of the responsibilities outlined in the RFP. Each vendor is required to discuss its proposed staffing for the project and its service delivery approach. The RFP does not contain minimum staffing requirements. Paragraph 3 of the Detailed Evaluation Criteria Components (Attachment E, pages 5 and 6), under the heading Project Staffing, instructs the evaluators as to how they are to evaluate the portion of the vendor’s response that addresses its proposed staffing. Paragraph 4 of the Detailed Evaluation Criteria Components (Attachment E, pages 6 – 8) instructs the evaluators as to how they are to evaluate the portion of the vendor’s response that addresses its service delivery approach. There was no independent training of the evaluators. The evaluators were not provided materials outside of the RFP and the responses thereto. Each evaluator independently evaluated the responses. As instructed, no evaluator discussed her evaluations with the other evaluators. Petitioner presented the testimony of Ms. Garrett- Jones, Dr. Hardy, and Ms. Booth. Dr. McLaughlin was not called as a witness. The testimony of Ms. Jones-Garrett established her educational background and her experience. Ms. Jones-Garrett is the analyst in charge of the PAC services waiver for Respondent. One of the major components of the RFP was for the delivery of waiver for PAC services. Ms. Jones-Garrett has five and a-half years experience working in the public health department and an immunology/AIDS clinic in Orlando. During her time working there, she supervised an LPN, who was responsible for adherence to AIDS medication. She has knowledge of HIV care and regimens. She has a good understanding of the PAC services waiver and PAC waiver assessments. Based on her background and experience, the undersigned finds that she was qualified to sit as an evaluator.15 There was no evidence that she failed to follow the instructions given to her in performing her evaluation. Petitioner failed to establish that the evaluation process was flawed by the manner in which Ms. Jones-Garret performed her evaluation of the two responses. The testimony of Dr. Hardy established her educational background and her experience. Dr. Hardy has a Doctor of Pharmacy degree, is a licensed pharmacist, and has served as clinical pharmacy program manager for Respondent, where she oversees the delivery of medical and pharmaceutical services to Florida recipients suffering from co-morbid diseases. Dr. Hardy was previously employed by Florida State Hospital as a clinical pharmacist. While there, she dealt with patients, many of whom had HIV or AIDS. Their drugs, because of the clinical effects and drug interactions with psychotropic medications, were closely monitored. As a pharmacist, Dr. Hardy performed drug counseling for HIV/AIDS patients, drug utilization reviews, and other critical components involved in assisting in the management of an HIV/AIDS patient’s disease. Based on her background and experience, the undersigned finds that she was qualified to sit as an evaluator. There was no evidence that she failed to follow the instructions given to her in performing her evaluation. Petitioner failed to establish that the evaluation process was flawed by the manner in which Dr. Hardy performed her evaluation of the two responses. The testimony of Ms. Booth established her educational background and her experience. Ms. Booth has served as a contract manager for disease management projects, has been involved in assessing HIV/AIDS patients for medical care or disease management purposes. She has developed care plans for disease management programs requiring the coordination of physicians, therapists, nurses, and aides. She has significant experience supervising nurses and determining their staffing schedules. Ms. Booth is also a certified contract manager with training in procurement of disease management services. Based on her background and experience, the undersigned finds that she was qualified to sit as an evaluator. There was no evidence that she failed to follow the instructions given to her in performing her evaluation. Petitioner failed to establish that the evaluation process was flawed by the manner in which Ms. Booth performed her evaluation of the two responses. INTERVENOR’S STAFFING PROPOSAL Paragraph C.38.B of Attachment C of the RFP sets forth Technical Response requirements, beginning on page 14. Sub- paragraph 3 thereof (on page 15) pertains to Project Staffing and provides, in part, as follows: The respondent [vendor] shall demonstrate its capability by describing the qualifications and experience of its proposed staff, as stated in Attachment D, Section D.8. The description shall include, at a minimum: * * * d. The number, qualifications and credentials of the proposed RNs/LPNs, and how each area of the state will be served by the HIV/AIDS disease management program staff, number of staff for each area, the percentage of time to be devoted to this Program, information on the lead case manager (RN/LPN) in each geographic area, ability to be available 24 hours per day, seven (7) days per week, and where they will be located in Florida. Intervenor’s response to the RFP contained a detailed description in compliance with this requirement. The Detailed Evaluation Criteria Components, found beginning at page 5 of Attachment E, established that each evaluator could award a maximum of 45 points for the Project Staffing category. Since there were nine subparts to the category, each category, including the category pertaining to the nursing staff, could be awarded a maximum of five points. Each evaluator was to score Intervenor’s response to this category on the 0 to 5 scale set forth above. Ms. Stidman testified at length as to the deficiencies in Intervenor’s staffing plan for nurses. This testimony did not establish that Intervenor was a non-responsive bidder or that any evaluator failed to properly score this category. Intervenor was awarded a total of 14 points for this category from the four evaluators. THE FINAL TALLY Following the evaluation, Intervenor was awarded a total of 985 points. Petitioner was awarded 943 points. Petitioner failed to establish that the evaluation process was materially flawed. Petitioner failed to establish that it should have been awarded more points than Intervenor.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is further recommended that Petitioner’s proposal be rejected because it is non-responsive. It is further recommended that Intervenor’s proposal be rejected because Respondent has insufficient information to determine whether it is a responsible vendor. DONE AND ENTERED this 6th day of September, 2007, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2007.
