Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 3. Count II of the Administrative Complaint is voluntarily dismissed. 1 Filed June 7, 2012 10:07 AM Division of Administrative Hearings f ——_ ORDERED in Tallahassee, Florida, on this lo day of J Unr— , 2012. Agenc)}tor Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_copy of this Final Order was served on the below-named persons by the method designated on this V4 z day of Joe , 2012. Richard Shoop, Agency CTe Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) : (Electronic Mail) David W. Caldwell, Administrator Cynthia Mikos, Esq. Lakeshore Living, Inc. Allen Dell, P.A. 10919 Mistletoe Drive 202 South Rome Ave. Thonotosassa, FL 33592 Tampa, FL 33606-1854 (U.S. Mail) (U.S. Mail) Suzanne Suarez Hurley, Esq. Thomas P. Crapps, Administrative Law Judge Office of the General Counsel Division of Administrative Hearings Agency for Health Care Administration (Electronic Mail) (Electronic Mail)
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this al Ve say of ecomber , 2011, in Tallahassee, Leon County, Florida. t Elizabeth whee Secretary Agency for Health Care Administration Agency for Health Care Administration vs. Infinite Personal Possibilities, Inc. Final Order (C.I. #10-9595-000) Page 1 of 3 Filed January 5, 2012 1:16 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Gary Clarke, Esquire STERNSTEIN, RAINER & CLARKE, P.A. 411 East College Avenue Tallahassee, Florida 32301 (Via Facsimile and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Persons with Disabilities 4030 Esplanade, Suite 380 Tallahassee, Florida 32399-0950 (Via Email Only) Agency for Health Care Administration vs. Infinite Personal Possibilities, Inc. Final Order (C.1. #10-9595-000) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the day of LL. pee a4 , 2011. Richard Shoop, Esquire Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Agency for Health Care Administration vs. Infinite Personal Possibilities, inc. Final Order (C.I. #10-9595-000) Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH CASE NO.: 10-2415MPI vs. CASE NO.: 10-9595-000 PROVIDER NO.: 6745806-96 INFINITE PERSONAL POSSIBILITIES, INC., Respondent. / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, INFINITE PERSONAL POSSIBILITIES, INC., (‘PROVIDER’), by and through the undersigned, hereby stipulate and agree as follows: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 6745806-96, and was a provider during the audit period. 3. In its Final Audit Report, dated March 31, 2010, the Agency notified PROVIDER that a review of Medicaid claims performed by the Agency’s Office of the Inspector General, Bureau of Medicaid Program Integrity (“MPI”), indicated that certain claims, in whole or in part, were inappropriately paid by Medicaid. The Agency sought repayment of this overpayment, in the amount of two hundred sixty thousand, seven hundred thirty-one dollars and two cents ($260,731.02). Additionally, the Agency applied sanctions in accordance with Sections 409.913(15), (16), and (17), Florida Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 1 of 7 Statutes, and Rule 59G-9.070(7), Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of one thousand dollars ($1,000.00) for violation(s) of Rule 59G-9.070(7)(c), Florida Administrative Code; a fine in the amount of two thousand dollars ($2,000.00) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code. The total amount due was two hundred sixty-three thousand, seven hundred thirty-one dollars and two cents ($263,731.02). 4. In response to the audit report dated March 31, 2010, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to the original audit that took place in this matter, and after further documentation review, the Agency determined that the overpayment amount should be adjusted to ninety-one thousand, two hundred ninety-nine dollars and eighty- one cents ($91,299.81). Additionally, the Agency assessed the following against PROVIDER: a fine in the amount of one thousand dollars ($1,000.00) for violation(s) of Rule 59G-9.070(7)(c), Florida Administrative Code; a fine in the amount of one thousand, five hundred dollars ($1,500.00) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code; and costs in the amount of eight hundred twenty-two dollars and forty-six cents ($822.46). The total amount due is ninety-four thousand, six hundred twenty-two dollars and twenty-seven cents ($94,622.27). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA expressly agree as follows: (1) | AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the MPI review. Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 2 of 7 (2) (3) (4) (5) Within thirty (30) days of the date of execution of a Final Order adopting this Settlement Agreement, PROVIDER agrees to make a payment of the following: an overpayment in the amount of ninety- one thousand, two hundred ninety-nine dollars and eighty-one cents ($91,299.81); sanctions in the amount of one thousand dollars ($1,000.00) for violation(s) of Rule 59G-9.070(7)(c), Florida Administrative Code; sanctions in the amount of one thousand, five hundred dollars ($1,500.00) for violation(s) of Rule 59G- 9.070(7)(e), Florida Administrative Code; and costs in the amount of eight hundred twenty-two dollars and forty-six cents ($822.46). The total amount due is ninety-four thousand, six hundred twenty- two dollars and twenty-seven cents ($94,622.27). The amount due will be offset by any amount already received by the Agency in this matter. PROVIDER and AHCA agree that such payments as set forth above will resolve and settle this case completely and release both parties from all liabilities arising from the findings in the audit referenced as C.I. Number 10-9595-000. PROVIDER agrees that it will not re-bill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 2727 Mahan Drive, Building 2, Suite 200 Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 3 of 7 Tallahassee, Florida 32308 8. Overpayments owed to the Agency bear interest at the rate of 10 percent per year from the date of determination of the overpayment by the Agency, and payment arrangements must be made at the conclusion of legal proceedings, pursuant to Section 409.913(25)(c), Florida Statutes. Q. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 10. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 11. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 12. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 13. | This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 14. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 4 of 7 PROVIDER and AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 15. This is an Agreement of Settlement and Compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 16. PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 17. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 5 of 7 18. The parties agree to bear their own attorney's fees and costs, if any. 19. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 20. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 21. This Agreement shall inure to the benefit of and be binding on each party's successors, assigns, heirs, administrators, representatives and trustees. 22. Alltimes stated herein are of the essence of this Agreement. 23. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. THE REMAINDER OF THIS PAGE !S INTENTIONALLY BLANK Agency for Health Care Administration v. Infinite Personal Possibilities, Inc. Settlement Agreement for C.1. No.: 10-9595-000 Page 6 of 7 INFINITE PERSONAL POSSIBILITIES, INC. By L a | Dated: @/) 2011 BY: Devore bec GLlto (Print name) STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive Building 3, Mail Stop #3 Tallahassee, Florida 32308-5403 Dated: 12-490 2011 Inspector Genefal AY, _
Conclusions Having reviewed the Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $26,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed June 11, 2013 8:33 AM Division of Administrative Hearings 3. Conditional licensure status is imposed on the Respondent beginning on August 11, 2012, and ending September 11, 2012. ORDERED at Tallahassee, Florida, on this [ o day of te. , 2013. (" RrA + Elizateth Dudek, eis Agency for Health\Gafe 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 corre of this Final Order was served on the below-named persons by the method designated on this ae or —) , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Barbara J. Staros Richard Joseph Saliba Administrative Law Judge Office of the General Counsel Division of Administrative Hearings Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Anna Gay Small, Esquire Finance and Accounting Allen Dell P.A. Agency for Health Care Administration 202 South Rome Avenue, Suite 100 (Electronic Mail) Tampa, Florida 33606-1854 (U. S. Mail) Jan Mills Facilities Intake Unit (Electronic Mail)
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes (2009), the issue is whether Respondent Agency for Health Care Administration (AHCA) properly determined that Petitioner Maximus Health Services, Inc.'s (Maximus) reply to Invitation to Negotiate 0904 (ITN 0904) was non-responsive for failure to meet mandatory criteria.
Findings Of Fact Beginning in 2006, the Florida Legislature required the AHCA to implement Medicaid Reform. Medicaid Reform was intended to empower consumers to take an active role in their health care decisions. To serve that purpose, the Legislature required the AHCA to contract with a choice counseling/enrollment broker to provide Medicaid services in Broward, Duval, Nassau, Clay, and Baker counties. ITN 0904 sought to procure an enrollment broker for a three-year contract. It was released on March 9, 2009. The resulting contract is worth in excess of $30 million dollars from June 1, 2009, through June 30, 2011. ITN 0904 consisted of a series of attachments, including the following in relevant part: (a) Attachment C contained “Special Conditions"; (b) Attachment E provided “Evaluation Criteria”; and (c) Attachment G set forth "Required Certifications." The mandatory requirements of ITN 0904 were announced at Section C.7 of ITN 0904 as follows: C.7 Mandatory Requirements: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall", "must", or "will" (except to indicate futurity) in this solicitation, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the solicitation requirement, provides an advantage to one respondent over another, or has a potentially significant affect of the quality of the response or on the cost to the state. Material deviations cannot be waived. The words "should" or "may" in this solicitation, indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature (sic) will not in itself cause rejection of a response. Section C.13 set forth the required certifications as follows in pertinent part: Required Certifications: The following certifications, contained in Attachment G, are required and must be submitted with the response: * * * Certification Regarding Terminated Contracts - certifying the vendor (including its subsidiaries and affiliates) has not unilaterally and willfully terminated any previous state or federal contracts for cause within the past five (5) years. FAILURE TO SUBMIT ATTACHMENT G, REQUIRED CERTIFICATIONS, SIGNED BY AN AUTHORIZED OFFICIAL WITHOUT EXCEPTIONS OR CAVEATS, WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S RESPONSE. Section C.14 described the proposal guarantee as follows in relevant part: Proposal Guarantee: The original technical response must be accompanied by a proposal guarantee payable to the State of Florida in the amount of $260,000. The respondent must be the guarantor. Section C.38 contains general instructions for response preparation and submission as follows in pertinent part: The solicitation response shall consist of the following parts: A. Transmittal Letter This letter is mandatory . . . . The following documentation shall also be included with the transmittal letter: Proposal Guarantee, as required in Section C.14. Signed Attachment G, Required Certifications, as required in Section C.13. Signed Attachment L, Attestation of No Conflict, attesting that the vendor has no conflict of interest as described in Section C.31. FAILURE TO SUBMIT THE MANDATORY TRANSMITAL LETTER, INCLUDING ITEMS 1-3 ABOVE, WILL RESULT IN REJECTION OF THE PROPOSAL. In Attachment E of ITN 0904, AHCA set forth the evaluation criteria it would use to assess the merits of responses. In Section E.1, the Agency announced that it would review mandatory criteria as follows: E.1 Review of Mandatory Criteria The Procurement Office will evaluate responses to this solicitation 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. Part I is entitled Technical Response Mandatory Criteria. It is a checklist of some of the mandatory requirements of ITN 0904 and states as follows in relevant part: This evaluation sheet will be used by the Agency for Health Care Administration to designate proposals as "responsive" or "non- responsive". If the answer to any of the questions in the table below falls in to the "No" column, the proposal will be designated as "non-responsive" and will not be considered for further evaluation. QUESTIONS YES NO A. Does the response include a transmittal letter, signed by an individual having authority to bind the vendor, containing the following information, as outlined in Section C.38.A? The proposal guarantee, as specified in Section C.15 (sic)of this solicitation; ? A signed Attachment G, Required Certifications, as specified in Section C.13 of this solicitation; ? Attachment G is a form for all required certifications, including but not limited to the following: Certification Regarding Terminated Contracts I hereby certify that my company (including its subsidiaries and affiliates) has not unilaterally or willfully terminated any previous contract prior to the end of the contract with a state or the federal government and has not had a contract terminated by a state or the federal government for cause, prior to the end of the contract, within the past five years. Signature of Authorized Official Date On July 30, 2008, after receiving questions from interested vendors, AHCA issued an Addendum No. 1 to ITN 0904. The purpose of the addendum was to provide clarification and additional information, to make changes to certain attachments, and provide AHCA's response to questions received from prospective vendors. The addendum included the following statement: To the extent this Addendum gives rise to a protest, failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. The following pertinent questions and answers were included in Addendum No. 1: Question 1: Pursuant to Attachment A.9 and Attachment C.13, please clarify whether the certification relates to the vendor terminated a contract or the government agency terminated a contract, or two different certifications. Answer: Please see Attachment G, Required Certifications, as referenced in Attachment C.13. This certification relates to the vendor (including its subsidiaries and affiliates) unilaterally or willfully terminating any previous contract prior to the end of the contract with a state or the federal government, and to the vendor having a contract terminated by a state or the federal government for cause prior to the end of the contract, within the past five years. * * * Question 8: Attachment C.13 - Please clarify whether the bidder will be disqualified if there is even one instance where a government contract was terminated for cause in the past 3 years. Answer: Respondents must submit a signed certification (Attachment G) in order to be considered responsive. Maximus admits that it asked Question 8 and received the answer set forth above. Maximus did not challenge any of the specifications in ITN 0904 after issuance of Addendum No. 1. Bruce Caswell, the President and Chief Executive Officer of Maximus, signed the required certifications on Attachment G on August 24, 2009. On the following page, Mr. Caswell included information about a terminated contract involving its parent company, Maximus, Inc., as set forth below. AHS, Maximus, and Policy Studies, Inc. (PSI) submitted replies to ITN 0904 on or about August 24, 2009. AHCA opened the replies that same day and forwarded them to AHCA's Procurement Officer, Barbara Vaughan. Ms. Vaughan had the responsibility to determine compliance with ITN 0904's "Technical Response Mandatory Criteria," using the checklist set forth above. Ms. Vaughan has been AHCA's Procurement Administrator since April 2009. She does not have knowledge and experience in all the technical areas for which AHCA may procure services. During the hearing, Ms. Vaughan did not know what an enrollment broker service is. She did not read the technical responses to ITN 0904. She only examined whether the responses included the mandatory items on the checklist. Sometime in September 2009, Ms. Vaughan determined that Maximus had submitted a non-responsive proposal because it included information regarding a contract that the State of Connecticut terminated with Maximus, Inc. Specifically, Maximus included the following additional information following its certification on Attachment G: ADDITIONAL INFORMATION FOR ITN ATTACHMENT G As noted in the form on the previous page, we certify that MAXIMUS Health Services has not terminated any contract or been terminated prior to the end of the contract term during the past five years. Since, MAXIMUS Health Services is a subsidiary of MAXIMUS, Inc. we offer information about the parent company with respect to this certification. Of the thousands of contracts held by MAXIMUS, Inc. during the past five years, there is one incident of relevance. In this situation, in 2007, a MAXIMUS, Inc. contract to provide an updated criminal justice information system was terminated by the State of Connecticut prior to the end of the contract term after the primary subcontractor of MAXIMUS, Inc. abandoned the project. MAXIMUS, Inc. is disputing the State's termination and has sued its primary subcontractor. Mr. Caswell decided to include the forgoing exception or caveat following his certification because he understood that Maximus, Inc., as Maximus' parent company, was an affiliate and he did not want any misunderstanding. Mr. Caswell's interpretation of the word "affiliate" is consistent with the definition applied by AHCA in its review of the Technical Response Mandatory Criteria. At the hearing, Mr. Caswell, testified regarding the Connecticut contract. According to Mr. Caswell, Maximus, Inc., found itself in a position where it was unable to deliver on a contract for an integrated criminal justice solution with the State of Connecticut due to the mal-performance of its subcontractor. Mr. Caswell stated that Maximus, Inc., then moved to terminate the contract for convenience pursuant to the contract's terms; however, the State of Connecticut rejected Maximus' termination for convenience. Mr. Caswell admitted that the State of Connecticut then terminated the contract for cause and filed suit against Maximus, Inc., in approximately November 2007. Maximus is defending itself and suing its former sub-contractor in that on-going litigation. The State of Connecticut has alleged damages of $6.5 million dollars in their claim against Maximus, Inc. As a company listed on the New York Stock Exchange, Maximus, Inc., had annual revenues of approximately $717 million during the most recent fiscal year. The company has no debt and $87 million of cash on hand. The Connecticut dispute is less than one percent of the company's annual revenues. The following facts are undisputed: (a) Maximus has performed thousands of contracts without cancellation; Maximus is a wholly-owned subsidiary of Maximus, Inc.; Maximus, Inc., is a leading provider of health and human services and consulting and program management services primarily to state governments; (d) Maximus, Inc., offers Medicaid-managed care enrollment brokerage services for thirteen states around the country, serving nearly 15 million Medicaid beneficiaries; and (e) Maximus performs enrollment broker contracts for several states. These facts do not make the Connecticut litigation immaterial considering AHCA's clear intent in drafting ITN 0904 relative to terminated contracts. The mandatory requirement for a certification regarding terminated contracts, without exceptions or caveats, was a reasonable specification because, as Mr. Caswell testified, disputes like the one between Connecticut and Maximus, Inc., are common in the industry. Ms. Vaughan correctly interpreted the language of ITN 0904 when she concluded that no explanation of a terminated contract involving a vender or its affiliates was allowed by the solicitation. Therefore, Ms. Vaughan did not forward Maximus' proposal for scoring by the evaluation team. In comparing Maximus' submission to the mandatory requirement for a proposal guarantee to the checklist included in Attachment E, Ms. Vaughan determined that Maximus' submission was responsive. She reached this conclusion even though Maximus' proposal guarantee was not in its own name as required by Section C.14. Instead, Maximus included a "Bid Bond" guaranteed by Maximus, Inc. The bond identifies Maximus, Inc., as Principal, Travelers Casualty and Surety Company of America, as Surety, and AHCA, as Obligee. The bond erroneously states that Maximus, Inc., has submitted a bid for Solicitation Number AHCA ITN 0904, Florida Medicaid Enrollment Broker Services. The bond then goes on to describe its terms and conditions. There is no mention of the Surety guaranteeing performance by any subsidiary or affiliate of Maximus, Inc., or specifically by Maximus. Ms. Vaughan made her decision to reject Maximus’ bid just a week or two after bid openings, sometime in September 2009. However, AHCA did not announce its bid decision as it related to Maximus at that time. Instead, AHCA announced the rejection of Maximus after it announced the intended award of contract to AHS. The notice of Maximus' rejection followed an evaluation of responses by AHS and PSI, a negotiation session with AHS and PSI, and a subsequent negotiation session with AHS, who then provided the best and final offer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the protest. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010. COPIES FURNISHED: Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302-7742 Rachic Avanni Wilson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $5,000 in accordance with the terms set forth in the Settlement Agreement. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due pursuant to the terms of the Settlement Agreement. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed December 20, 2011 10:33 AM pibision of Administrative Hearings ORDERED at Tallahassee, Florida, on this / Z day of Pecehe a , 2011.
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 T CERTIFY that a true and correct copy of this ee ES ee on the below-named persons by the method designated on this _/ FO aay of L , 2011. Richard Shoop, Agency Cle Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting | Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Andrea M. Lang, Senior Attorney Sally Still, Esquire Office of the General Counsel Attorney for Respondent Agency for Health Care Administration Ward Damon (Electronic Mail) 4420 Beacon Circle West Palm Beach, Florida 33407 (U.S. Mail) Jessica E. Varn Administrative Law Judge Division of Administrative Hearings (Electronic Mail) |
