Findings Of Fact Edward Amsbury, Petitioner, is a Career Service employee with permanent status. The Petitioner timely filed an appeal of the Respondent's actions as set forth above. According to Petitioner, he applied for several jobs under the reorganization of the Department of Health and Rehabilitative Services (HRS) prior to July of 1976. At that time he was advised that inasmuch as he was not an adversely affected employee, he would only be considered after all adversely affected employees were placed in other positions. On July 9, 1976, a letter was sent by George Van Staden, ASO, by Larry Overton to the District Administrator advising that Petitioner was originally to have been adversely affected and he (Van Staden) asked for justification as to why Petitioner's position was continued in the District III personnel structure. Thereafter, on approximately July 22, 1976, according to Petitioner, Richard Dillard, Sub- district III-A Administrator, orally advised him that his position would be abolished prior to January 1, 1977, due to HRS' reorganization. A few days later, Petitioner was advised by Mr. Dillard that his position as Mental Health Representative was being reclassified to that of the Community Resources Development Unit Supervisor as of October 1, 1976, and that the pay grade would be 18 rather than his then existing pay grade, 19. Petitioner was asked to write a new job description for the Community Resources Development Supervisor, at which time he was offered that position. Petitioner was then at the top of Pay Grade 18; however, he was advised by Mr. Dillard that his salary would not be reduced since he, in effect, was adversely affected due to reorganization. In view of the lateness with which the Petitioner was advised that his position was adversely affected, there were then only two positions available within the district, i.e., Community Resources Development Unit Supervisor or Clinical Social Worker II at the North Florida Evaluation and Treatment Center. Petitioner chose the position more closely related to his field of Mental Health, i.e., the Community Resources Development Unit Supervisor, and was told by Mr. Dillard that he would retain his present salary regardless of which position he accepted. All the Petitioner's performance evaluations were satisfactory or above. Based on the record, it appears that the Petitioner was forced to accept a position with a lower pay grade due to HRS' reorganization. By letter dated July 1, 1977, the Petitioner was advised by William H. McClure, Jr., District Administrator, that the Department of Administration had disapproved the District Administrator's request that he (Petitioner) maintain his current salary above the maximum for the class of Clinical Social Worker II, to which he was demoted on September 17, 1976. Correspondence from Conley Kennison, State Personnel Director, reveals that determination was based on the following reasons: Petitioner's voluntary demotion was not directly attributable to reorganization since the position of Mental Health Representative continued in existence until July 1, 1977; He retained his bi-weekly salary of $584.76 upon demotion without approval of the State Personnel Director; and Petitioner was not informed in writing the Mental Health Representative position would be adversely affected, by reorganization. As a result thereof, the Department of Administration contended that it overpaid the Petitioner the amount of $11.16 per bi-weekly pay period and that in accordance with provisions of Chapter 22K-10.04(2) of the Personnel Rules and Regulations, such amount must be recovered and to effect such, said amount would be deducted from each salary warrant for a period of twenty-one pay periods to cover the overpayment from September 17, 1976, through July 7, 1977. Additionally, effective July 8, 1977, Petitioner's salary was reduced to the maximum for Pay Grade 18, i.e., $573.60 bi-weekly. The letter of July 1, 1977, further advised the Petitioner that although he was originally designated adversely affected along with all the other Mental Health Representative positions, positions which were to be abolished on July 1, 1976, the District Administrator was later told that Petitioner's position would not be abolished until January of 1977. Petitioner, as stated in said letter, took his demotion in good faith, feeling that his position of Mental Health Representative would be abolished. On November 17, 1976, the District Administrator forwarded a request to the Department of Administration requesting that Petitioner's salary be maintained; however, no action was taken because no administrative disposition bad been taken with respect to the abolishment of that position. A further request was sent to the Department of Administration in April, and during June of 1977 the request was denied and efforts to recover the overpayment were implemented. Evidence contained in the case files revealed that several employees who were voluntarily demoted pursuant to reorganization were granted permission to maintain their current salaries which amounted to payments above the maximum for the class to which they were demoted. The Respondent offered no evidence to refute or otherwise contradict the statements and contentions of the Petitioner that he was advised by district representatives and personnel that his salary would be maintained even though he was being demoted due to reorganization. It further appears that the Respondent, in relying on statements by the District Administrator (Dillard), was hampered in his efforts to obtain favorable consideration for other positions which were up for bid during the reorganization process. Noteworthy is the uncontradicted statement that the Petitioner was told that inasmuch as he would not be adversely affected by reorganization, he would not be considered for positions until all adversely affected employees had been placed in positions which were open for bid during reorganization. A memorandum from Art Adams of the HRS Personnel Office to John Campbell, Personnel Officer for District IV, dated August 9, 1976, advised that all employees who were asked to take a demotion due to reorganization would retain their salaries over the maximum. For all of the above reasons, including the indefensible position advanced by the Respondent, I shall recommend that the Respondent's action in reducing the Petitioner's pay and seeking to recover amounts allegedly overpaid be reversed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: The Petitioner's salary be reinstated to the level to which he was receiving as of the date of demotion on or about September 17, 1976. That the Respondent make whole any loss of pay the Petitioner suffered as a result of the reduction in his salary and the bi-weekly deductions of $11.16. That the Petitioner be paid interest at the rate of 6 percent per annum based on the amounts withdrawn from his salary warrants through the deductions and the recovery of amounts allegedly overpaid him when his salary was reduced. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978. COPIES FURNISHED: Mr. Edward Amsbury 5620 Northwest 25th Terrace Gainesville, Florida 32601 Mrs. Dorothy B. Roberts Career Service Commission 443 Carlton Building Tallahassee, Florida 32304 Joseph E. Hodges, Esquire 2002 Northwest 13th Street 3rd Floor, Oak Park Executive Square Gainesville, Florida 32601 Thomas K. McKee, Jr., Esquire Post Office Box NFETC Gainesville, Florida 32602 =================================================================
The Issue Whether Petitioner's application for licensure by examination as a mental health counselor was wrongfully denied.
Findings Of Fact Petitioner attended the University of Tampa and graduated with a degree in social work and psychology in 1978. He subsequently attended Heed University in Fort Lauderdale from 1979 through 1981, graduating in 1981 with a master's degree in counseling psychology. Heed University is not accredited by an accrediting agency approved by the United States Department of Education and was not so accredited while Petitioner was there enrolled. Respondent has worked as a mental health counselor at Tampa Heights Hospital (Exhibit 3), at the Hillsborough Regional Juvenile Detention Center, Charter Hospital, as well as at other facilities, and has served on panels and given lectures at mental health related programs not only in Florida but throughout the United States. Suffice it to say, he has considerable experience as a mental health counselor (Exhibits 4 and 6). At the hearing, Petitioner submitted an original of his transcript at Heed University with impressed seal of the University. This satisfies the objection that Petitioner had not presented an original transcript of his grades at Heed University.
Recommendation It is recommended that Alan Leonard Getreu's application to sit for the mental health counselor licensing examination be denied and this appeal dismissed. ENTERED this 27th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino, Esquire One Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, FL 33609 Linda Biedermann Executive Director Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issues in this case, which arises from Petitioner's application for an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes, are whether Petitioner was a prevailing small business party in a disciplinary proceeding that Respondent initiated, and, if so, whether Respondent's decision to prosecute Petitioner was substantially justified or whether special circumstances exist that would make an award unjust.
Findings Of Fact On August 15, 2014, Respondent Department of Children and Families ("DCF") issued an Administrative Complaint against Petitioner Children's Hour Day School (the "School"), a licensed child care facility, charging the School with two disciplinable offenses, namely denial of food as form of punishment (Violation 1) and misrepresentation (Violation 2). The allegations of material fact in support of Violation 1 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #12, Child Discipline, [because] a child, to wit, S.B., was denied a snack as a form of punishment when the child allegedly hit her sister, L.B. who is also enrolled at the child care facility. The allegations of material fact in support of Violation 2 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #63, Misrepresentation, when it came to the Family Safety Counselor's attention that child care personnel, K.L. misrepresented and forged information, related to the child care facility when he utilized a notary stamp belonging to a former employee, namely Albarran and submitted the 2014 application for licensure to the Department with the forged notarization. The School, which requested a hearing, was found not guilty of the charges. See Dep't of Child. & Fams. v. Child.'s Hour Day Sch., Case No. 14-4539, 2015 Fla. Div. Adm. Hear. LEXIS 8 (Fla. DOAH Jan. 9, 2015; Fla. DCF Feb. 18, 2015). The Administrative Law Judge made the following findings of material fact with respect to Violation 1: S.B. and L.B. are young sisters who stayed at Respondent's day-care center in July 2014. On July 9, 2014, one of Respondent's employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. [Kevin] Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister's share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Id. at 3-4 (paragraph number omitted). The Administrative Law Judge made the following findings of material fact with respect to Violation 2: On March 25, 2014, Petitioner received from Respondent an "Application for a License to Operate a Child Care Facility" (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon's signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran's notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon's signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran's notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as "Kevin Lennon." Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Id. at 4-5 (paragraph numbers omitted). The School's owner is a corporation, Hamilton-Smith, Inc. ("HSI"), whose principal office is located in the state of Florida.1/ Kevin Lennon, who was referred to as "K.L." in the Administrative Complaint and is mentioned in the findings of fact quoted above, is HSI's sole shareholder. HSI employed fewer than 25 persons at the time DCF initiated the underlying disciplinary proceeding, and at all relevant times thereafter. Thus, HSI is a "small business party" as that term is defined in section 57.111(3)(d)1.b., Florida Statutes.2/ DCF agrees that HSI is a "prevailing" party as that term is defined in section 57.111(3)(c)1., inasmuch as a final order dismissing the charges against the School was entered in DOAH Case No. 14-4539. It is determined, as a matter of ultimate fact, that HSI is a "prevailing small business party" entitled to recover its reasonable attorney's fees and costs from DCF "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." § 57.111(4)(a), Fla. Stat. In defending against the administrative charges, HSI incurred attorney's fees in the amount of $4,515.00 and costs totaling $434.50, for which it now seeks to be reimbursed. DCF does not contest the amount or reasonableness of either sum. DCF contends, however, that an award of attorney's fees and costs is unwarranted because its actions were substantially justified. It is therefore necessary to examine the grounds upon which DCF made its decision to charge the School with the offenses alleged in the Administrative Complaint. The disciplinary action had its genesis in an anonymous complaint that, on August 6, 2014, was phoned in to the local DCF licensing office in the School's vicinity. DCF counselor Michaelyn Radcliff went out that same day to investigate, and she met Tajah Brown at the School. Ms. Brown, an employee of the School, revealed to Ms. Radcliff that she had made the complaint, which involved the ratio of staff to children. Mr. Lennon, who was Ms. Brown's boss, happened to be out of town at the time and hence was not present for Ms. Radcliff's inspection. For the next six hours or so, Ms. Brown described for Ms. Radcliff every regulatory violation or offense she could think of, which she believed the School might have committed. One such offense was the alleged withholding of S.B.'s snack. Ms. Brown had not witnessed this incident, but she knew the child's mother, E.B., and offered to ask the mother to give a statement about it, which Ms. Radcliff agreed was a good idea. E.B. met Ms. Radcliff at the School, accompanied by her daughter S.B., who was then two years old. E.B. did not have personal knowledge of the alleged denial-of-snack incident, but she had been told about the event by her sister (S.B.'s aunt) who had picked S.B. and L.B. up from day care the evening of its alleged occurrence. The aunt did not have personal knowledge of the matter either, having arrived afterward. Rather, according to E.B., the aunt had told E.B. that Mr. Lennon had told her (the aunt) that S.B. had hit L.B. and thrown a tantrum. Ms. Radcliff did not speak to the aunt, however, whose testimony about what Mr. Lennon told her actually might have been admissible at hearing under an exception to the hearsay rule3/; instead, she accepted E.B.'s statement about the incident, which was based on hearsay (Mr. Lennon's declaration) within hearsay (the aunt's declaration) and had no evidential value on its own. Ms. Radcliff did question one eyewitness: two-year- old S.B., who denied hitting her sister, complained that Mr. Lennon would not give her a snack, and accused Mr. Lennon of hitting her. S.B.'s statement, such as it was, was the only independently admissible evidence Ms. Radcliff had. She never spoke with Mr. Lennon, who was the only adult eyewitness to the alleged denial-of-snack incident.4/ As for the alleged misrepresentation, Ms. Brown informed Ms. Radcliff that she (Ms. Brown) had observed Mr. Lennon using a notary stamp belonging to Ivanne Albarran, a former employee of the School, to "notarize" signatures in Mr. Albarran's name when he was not around. Ms. Brown did not, however, identify any specific documents that she claimed to have seen Mr. Lennon fraudulently notarize in this fashion.5/ Nor, apparently, was she asked whether she was familiar with either Mr. Albarran's or Mr. Lennon's signature or if she could identify anyone's signature on any document. Ms. Radcliff herself compared the signatures on documents purportedly signed by Mr. Albarran during the time when Mr. Albarran was an employee of the School with some of his purported signatures on documents executed after his employment had ended. She concluded that the signatures looked different. Ms. Radcliff is not a forensic document examiner, however, and she has no discernable expertise in handwriting analysis. Based on her layperson's opinion about the signatures, Ms. Radcliff determined that Mr. Albarran had not executed some notarized documents that the School had submitted with its recent application for renewal licensure, even though his stamp, seal, and purported signatures appeared on them. Based on Ms. Brown's claim to have seen Mr. Lennon use Mr. Albarran's notary stamp, Ms. Radcliff concluded that Mr. Lennon had forged these signatures. Ms. Radcliff never asked Mr. Albarran whether he had signed the documents in question, nor did she speak with Mr. Lennon about the matter.
The Issue The issue in this matter is whether the Department of Health should discipline Respondent’s clinical social worker’s license.
Findings Of Fact The Department is the state agency charged with regulating the practice of clinical social work in Florida. See § 20.43 and chs. 456 and 491, Fla. Stat. Respondent is a licensed clinical social worker in the State of Florida, having been issued license number SW 14255 on February 14, 2017. Respondent received his Licensed Master Social Work degree in New York in May 2006. Between August 2013 and August 2017, Respondent worked as a clinical social worker/psychotherapist at Compass Counseling Services, LLC (“Compass Counseling”), in Orlando, Florida. The Department seeks to discipline Respondent based on an incident that occurred on July 19, 2017. The Department accuses Respondent of committing “sexual misconduct” with a patient. The Administrative Complaint specifically alleges that, during a counseling session in his office, Respondent: told Patient L.P.[7/] that she was attractive, followed Patient L.P. to the door and grabbed her buttocks with his hand, and, grabbed Patient L.P.’s arm, pulled her towards him, and attempted to kiss her. “Sexual misconduct” in the practice of clinical social work, mental health counseling, or psychotherapy is prohibited under section 491.0111. “Sexual misconduct” is defined by rule 64B4-10.002, which provides: (1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior . . . whether verbal or physical, which is intended to be sexually arousing, including kissing; . . . or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed. Section 491.009(1)(k) authorizes the Department to discipline Respondent for “sexual misconduct” up to and including permanent revocation of his clinical social worker’s license. In July 2017, L.P. was 27 years old. She was (and is currently) living with a transgender man, Kode Hulett. L.P. refers to Mr. Hulett as her husband, although they are not legally married as of yet. At the final hearing, L.P. testified that she suffers from a number of mental health conditions including Attention- Deficit/Hyperactivity Disorder (“ADHD”), auditory processing disorder, and bipolar disorder, as well as anxiety, anger issues, depression, insomnia, and mood disorder. In addition, L.P. experiences post-traumatic stress disorder (“PTSD”) stemming from past sexual abuse. During her testimony, L.P. also disclosed that she has a very bad memory and gets confused very easily. She urged, however, that her ailments do not affect her mental awareness. Conversely, L.P. is considered fully “disabled” in that she cannot work due to her mental health illnesses. L.P. explained that she has received mental health counseling since she was young. In June and July 2017, L.P. received psychotherapy services from Respondent at Compass Counseling. L.P. relayed that she was searching for a new therapist and (to the best of her memory) her insurance company recommended Compass Counseling. L.P. and Respondent met on three occasions, June 23, 2017, July 6, 2017, and July 19, 2017. Each appointment started at 1:00 p.m. and lasted approximately an hour. During all sessions, L.P. met with Respondent alone in his office, with the door closed. At L.P.’s first visit, Respondent initially informed L.P. that he was leaving Compass Counseling shortly for another job. Therefore, he offered to refer her to another mental health therapist (Ashlyn Douglass-Barnes, L.C.S.W.) if she so desired. Until he left, however, he was willing to meet with her. (In August 2017, Respondent departed Compass Counseling for a job with Magellan Behavioral Health. There, he manages a customer- provider call center and does not treat patients.) During their first session on June 23, 2017, Respondent colloquially introduced himself as “Dr. G.” Respondent then conducted an initial evaluation of L.P. and prepared a Complete Evaluation/Biopsychosocial Assessment. In his assessment, Respondent recorded that L.P. chiefly complained of “mood swings, anxiety, insomnia, attentional issues, auditory processing issues, and post traumatic stress.” He added that L.P. had experienced panic attacks two to three times a month for years, as well as depressive disorder. Respondent also wrote that L.P. experienced anxiety symptoms “a few times a week.” Finally, Respondent noted that L.P.’s PTSD resulted from several instances of physical and sexual abuse she suffered as a youth and a young adult. Despite her issues, Respondent wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, well groomed, overweight, and relaxed. . . . [L.P.’s] behavior in the session was cooperative and attentive with no gross behavioral abnormalities. Respondent recorded the following diagnoses: bipolar II disorder, panic disorder [episodic paroxysmal anxiety], and (chronic) PTSD. Regarding L.P.’s PTSD, Respondent remarked that L.P. suffered from flashbacks to the traumatic event, which resulted in feelings of detachment or estrangement from others. Respondent also documented that L.P. was prescribed several psychotropic medications including Effexor and Lamictal. (Other medical records from 2017 indicate that L.P. was also prescribed and/or taking Alprazolam, BuSpar, Concerta, Doxepin, Geodon, Hydrocodone/Acetaminophen, Lamotrigine, Meclizine, Omeprazole, Oxycodone, Quetiapine Fumarate, Promethazine, Robaxin, Rozerem, Seroquel, Sucralfate, Venlafaxine, Xanax, and Zyprexa.) As part of his assessment, Respondent formulated a six- month treatment plan for L.P., which included ongoing individual psychotherapy sessions. During their second psychotherapy session on July 6, 2017, Respondent again wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, casually groomed, over weight, and relaxed. . . . Mood presents as normal with no signs of either depression or mood elevation . . . thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. Respondent recorded that L.P. mainly discussed her issues coping with depression and impulsivity. Respondent responded by providing “unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors.” Respondent identified “Anxiety” and “Depressed Mood” as L.P.’s active problems in need of treatment. L.P. and Respondent met for their third (and final) appointment on July 19, 2017. During this session, Respondent recorded in L.P.’s Progress Notes that she appeared stable and made no psychiatric complaints. Respondent described L.P. as: [C]oherent and spontaneous. Mood presents as normal with no signs of either depression or mood elevation. Affect is appropriate, full range, and congruent with mood. Associations are intact and logical. There are no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process. Associations are intact, thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. There are no signs of hyperactive or attentional difficulties. Respondent, once again, identified “anxiety” as L.P.’s active problem, which manifested in PTSD. Respondent wrote that “Clinician provides unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors. . . . A Client-Centered and Empowerment therapeutic approach was used in session to assist [L.P.] in recognizing personal strengths, as well as how to use them to manage presenting problems.” The incident in question occurred just after L.P. and Respondent finished their final session. As was typical, L.P. and Respondent were alone in his office, and the door was closed. Initially, although Respondent was leaving Compass Counseling soon, he asked if L.P. would schedule one last appointment with him. L.P. agreed. She stood by his desk as they selected another date on his computer calendar. At that point, L.P. turned and walked to the door to leave the room. Just as she reached the door, L.P. testified that she felt Respondent’s hand grab her right buttock in a “very sexual” manner. L.P. spun around, swatted his hand away, and exclaimed, “What the f***? I’m married.” She then pivoted back to the door. L.P. asserted that when she reached for the door knob, however, Respondent grabbed her wrist. L.P. stated that she then heard Respondent say, “You’re just really attractive.” L.P. expressed that she turned toward Respondent, he leaned in close to her. She sensed (by her “intuition”) that he wanted to kiss her, but he did not. L.P. testified that she pushed him away and again said, “What the f***? I’m married.” L.P. was then able to open the door and leave Respondent’s office. When L.P. exited Respondent’s office, he accompanied her down the hallway. They walked together through the office lobby and out of the building. In the parking lot, they separated. L.P. walked to her car, where Mr. Hulett was waiting in the driver’s seat. Respondent went to his car and retrieved a business card for an auto shop. Respondent then walked over to L.P.’s car. He approached Mr. Hulett in the driver’s seat and offered him the business card. Mr. Hulett cracked down the window and accepted the card. At that point, Mr. Hulett and L.P. drove away from Compass Counseling for a trip they had previously planned for St. Augustine. Mr. Hulett testified at the final hearing in support of L.P.’s story. Mr. Hulett and L.P. have lived together for over nine years. He “believed” he accompanied L.P. on her visit to Compass Counseling on July 19, 2017. During L.P.’s counseling session, Mr. Hulett waited in his car in the parking lot. While he did not witness L.P.’s encounter with Respondent, Mr. Hulett described L.P.’s behavior and demeanor immediately following her appointment. Mr. Hulett saw L.P. and Respondent exit the Compass Counseling building together after her appointment. He then observed Respondent motion for L.P. to come to his car. He watched as L.P., instead of following Respondent, headed to their car and climbed into the passenger seat. He stated that Respondent then approached their car and offered him a business card for a car mechanic through his driver’s side window. (Mr. Hulett confirmed that his car was having engine troubles.) During this interaction, Mr. Hulett testified that he immediately noticed that L.P. was not acting “regular.” She seemed nervous, and he sensed something was wrong. L.P., however, stayed silent. He then drove away from Compass Counseling. Mr. Hulett explained that they had planned to leave for St. Augustine immediately after L.P.’s appointment. After they started driving, however, Mr. Hulett noticed that L.P. appeared “physically upset.” Therefore, he repeatedly asked her what was wrong. Around 20 minutes later, after they reached the highway (I-4), L.P. opened up to him. Mr. Hulett testified that L.P. told him what had happened in Respondent’s office. Mr. Hulett specifically recalled that L.P., who had started crying, said that Respondent touched her inappropriately; she told him to stop, but he was persistent. At that point, Mr. Hulett and L.P. discussed what to do next. They decided to press on with their vacation. They would deal with the matter when they returned to Orlando. Mr. Hulett disclosed that they did not report the incident until after their trip ended, five days later. At the final hearing, L.P. testified that she waited to tell Mr. Hulett what had transpired in Respondent’s office because she feared his reaction. She was afraid Mr. Hulett would angrily and rashly confront Respondent. Instead, after she recounted Respondent’s conduct, L.P. and Mr. Hewlett continued on their vacation to St. Augustine. On the other hand, L.P. asserted that she called Compass Counseling 20 to 30 minutes after they drove away to cancel her next appointment with Respondent. L.P.’s cell phone records document three calls to Compass Counseling on July 19, 2017. Two were placed prior to her 1:00 p.m. appointment (12:18 p.m. and 12:23 p.m.). A third call was made at 2:04 p.m., approximately nine minutes after Respondent’s Progress Notes record that he finished L.P.’s counseling session (1:55 p.m.). The final call lasted one minute and 29 seconds. No evidence was presented documenting the subject matter of the 2:04 p.m. call. During her testimony, L.P. hesitantly agreed that the 2:04 p.m. call was the one during which she cancelled her appointment. (L.P. was under the impression that she met with Respondent from 12:00 p.m. to 1:00 p.m. on July 19, 2017. However, she conceded that she would not have phoned Compass Counseling at 12:18 p.m. or 12:23 p.m. if she was actually in her therapy session with Respondent at that time.) Other than the phone call to Compass Counseling at 2:04 p.m., L.P. did not contact any person or entity to report the incident until five days later on July 24, 2017. After leaving Respondent’s care, L.P. received psychotherapeutic counseling from Ashlyn Douglass-Barnes, a licensed clinical social worker who currently works at Jewish Family Services in Winter Park, Florida. Before Jewish Family Services, Ms. Douglass-Barnes worked at Compass Counseling from March 2014 through February 2017, where she met Respondent. Respondent referred L.P. to Ms. Douglass-Barnes during their first meeting on June 23, 2017. He contacted Ms. Douglass- Barnes through Facebook messenger. Respondent wrote: I have an intake today that would like to work with a female clinician. I have advised her that I am not going to be here much longer, and that I’d happily connect her with someone who is empathic, caring, and warm. I think this would be a perfect fit. . . . She’s 27 y.o. as well and is very sweet. Before Ms. Douglass-Barnes met L.P. for their first appointment, however, L.P. called her on July 24, 2017. Ms. Douglass-Barnes testified that L.P. expressed that “I need to tell you something, but it has to stay between us.” With Ms. Douglass-Barnes’s encouragement, L.P. confided that “last Wednesday [June 19, 2017], Dr. G. [Respondent] grabbed my butt and tried to kiss me.” Ms. Douglass-Barnes also recalled L.P. telling her that when Respondent grabbed her, she “turned around and yelled at him.” Ms. Douglass-Barnes invited L.P. to come to her office that day. When L.P. arrived at Ms. Douglass-Barnes’s office, L.P. repeated that Respondent made a sexual advancement towards her. Ms. Douglass-Barnes specifically recalled L.P. telling her the following: Respondent touched her butt as their therapy session ended. L.P. then slapped his hand away, and screamed, “What the hell, I’m married.” Respondent also tried to kiss her. Respondent subsequently told L.P., “I’m so sorry. I’m just so attracted to you.” Ms. Douglass-Barnes reviewed with L.P. all available options to report the incident (law enforcement, complaint to the Department, and Compass Counseling’s insurance carrier). L.P. wanted to exercise all options. Therefore, with L.P.’s acquiescence, Ms. Douglass-Barnes called 911 to report a sexual assault. A deputy sheriff from the Orange County Sheriff’s Office arrived at Ms. Douglass-Barnes’s office approximately 90 minutes later. L.P. provided a written statement to the deputy stating: On Wednesday July 19, 2017 I had an appt. w/ [Respondent]. When I arrived to the appt he brought me into his office and we began our session. When we were done with the session he told me he wanted one more appt with me. I said OK let’s make the appt. We made the appt and when I walked out of his office he grabed [sic] my butt. I slaped [sic] his hand away and said what the f[***] I am married. [Respondent] said he was sorry. You are just really attractive. Then he tried to kiss me and I pushed him away and said what the f[***] dude I am married again. He said he [was] sorry your [sic] just really attractive. I walked out of his office and he walked me out to my car. When I told him I was fine he tried to get me to go with him to his car. I said no I will meet you in my car. . . . He walked up to my car and gave my husband a card for [a] car fixing place. I DID NOT GIVE HIM ANY PERMISSION TO TOUCH ME AT ALL!! I want to prosecute and am willing to go to court for this.[8/] L.P. also told the police that Respondent had never attempted to touch her before the July 19, 2017, incident. Also on July 24, 2017, Ms. Douglass-Barnes, again with L.P.’s consent, prepared a formal complaint with the Department. On the Complaint Form, Ms. Douglass-Barnes indicated “abuse” and “sexual contact” were the reasons for L.P.’s complaint. L.P. signed the form. Ms. Douglass-Barnes faxed the Complaint Form to the Department that day and attached L.P.’s statement to the Sheriff’s Office. In addition, in August 2017, L.P. contacted a personal injury law firm. On March 19, 2018, the law firm wrote Compass Counseling on L.P.’s behalf complaining about the July 19, 2017, incident. The letter demanded $275,000 to settle L.P.’s case. Over the next few days, Respondent reached out to Ms. Douglass-Barnes expressing an urgent need to talk to her. Respondent did not explain his reasoning, although she suspected he was simply seeking support and unaware of her involvement. Ms. Douglass-Barnes avoided directly speaking with Respondent. At Compass Counseling, Ms. Douglass-Barnes considered Respondent a friend and colleague with whom she consulted and talked two to three times a week. Based on their time together, Ms. Douglass-Barnes described Respondent as a very effective therapist and passionate about his practice. She commented that he went over and above to help his clients. However, in light of L.P.’s accusations, on July 26, 2017, she informed Respondent that it was in their best interest not to communicate any further. Ms. Douglass-Barnes has had no contact with Respondent since that date. After meeting on July 24, 2017, L.P. continued to see Ms. Douglass-Barnes for cognitive behavior therapy. They met approximately every month from August 1, 2017, through June 5, 2018. L.P. first discussed her encounter with Respondent on October 4, 2017, during their third session. They also talked about the incident on April 9, 2018, May 8, 2018, and June 5, 2018. As part of her testimony, Ms. Douglass-Barnes also provided her insight into how L.P.’s mental health conditions affected her ability to perceive and understand what was happening around her in July 2017. Ms. Douglass-Barnes conveyed that L.P. has been diagnosed with auditory processing disorder. With this condition, L.P. has difficulty processing information or instructions when she is under emotional pressure or stressed. Auditory processing disorder can also cause L.P. to become confused. Consequently, L.P.’s ability to interact with others is affected. Ms. Douglass-Barnes also commented that L.P. is not manic, but does exhibit some traits of mania. This ailment is evident in L.P.’s impulsiveness. But, it does not affect her perception. Similarly, L.P. presents some traits of borderline personality disorder, but has not been diagnosed with this mental illness. (At the final hearing, Ms. Douglass-Barnes explained that borderline personality disorder is a mental condition characterized by pervasive abnormalities of perception, behavior, thinking, and relationships. Borderline personality disorder causes a person to operate in their own world, i.e., not in reality.) Finally, L.P. does not suffer from psychosis, which would substantially affect her ability to comprehend what is happening around her. Despite these mental health disorders, Ms. Douglass- Barnes testified that she never doubted L.P.’s ability to accurately recognize and understand what happened to her in Respondent’s office on July 19, 2017. Neither does she believe that L.P.’s mental health conditions impair her ability to tell the truth. Ms. Douglass-Barnes testified that, based on her interactions with L.P. and the consistency with which L.P. described the facts and circumstances of the encounter, she believes that L.P. accurately reported that Respondent “sexually touched/assaulted her inappropriately.” After L.P. reported the incident to Ms. Douglas-Barnes, on July 25, 2017, Compass Counseling received a phone call from a caller who did not identify herself. Luz Rosa was working the receptionist desk and took the call. Although the caller did not provide her name, Ms. Rosa was able to match the phone number to L.P. based on the information in her office records. Therefore, Ms. Rosa typed up a report of the call to include in L.P.’s file. (L.P.’s cell phone records from that date document a call that was placed to Compass Counseling at 2:46 p.m., which lasted approximately 10 minutes.) According to Ms. Rosa’s typed report, as well as her testimony at the final hearing, the caller (L.P.) asked about the cost of a first time visit, as well as the amount of the co-pay for follow-up appointments. Ms. Rosa relayed that the first appointment, without a medical plan, was priced at $75.00. The cost of follow-up visits differed depending on the plan. At that point, Ms. Rosa expressed that the caller became very upset. The caller threatened to sue Compass Counseling for charging too much to her medical plan. The report did not include, nor did Ms. Rosa remember, any complaint from the caller regarding Respondent’s services or an incident on July 19, 2017. On August 8, 2017, L.P. called Compass Counseling again. She left a voice mail canceling an appointment. On her message, L.P. relayed that “something else came up.” On August 16, 2017, Compass Counseling received another call from someone who did not identify herself. Dalys Melendez was the front desk coordinator that day and answered the call. Although the caller did not provide her name, Ms. Melendez was able to match L.P. to the phone number through caller ID. Ms. Melendez typed a record of the call and added it to L.P.’s file. (L.P.’s cell phone records also document a call placed to Compass Counseling at 10:40 a.m. that day, which lasted one minute and 34 seconds.) During the call, the caller (L.P.) asked if Respondent was working at Compass Counseling. After Ms. Melendez responded that he was not there, the caller became angry, screamed a profanity, then hung up the phone. At the conclusion of her testimony, L.P. stated that, in response to the July 19, 2017, incident, she wants Respondent’s license taken away. She would also like to see him go to jail. L.P. called Respondent’s actions “disgusting” and “sick.” She voiced that she should have been able to fully trust Respondent and feel safe with him during her therapy sessions, but Respondent violated that trust. L.P. expressed that what Respondent did to her should never happen to anyone else. Respondent elected not to testify at the final hearing.9/ Instead, Respondent contested the Department’s allegations by attacking the veracity of L.P.’s story. Respondent challenged L.P.’s testimony on two fronts. First, Respondent argues that the facts and circumstances surrounding the event do not support L.P.’s narrative. Second, Respondent asserts that L.P. has credibility issues which prevent the Department from meeting its burden of proof based on her testimony. To present a more comprehensive picture of the Compass Counseling office at the time of L.P.’s appointment, Respondent offered the testimony of two individuals who were working in Compass Counseling on the afternoon of July 19, 2017. Karina Flores is a psychotherapist who has provided counseling services at Compass Counseling since 2016. Ms. Flores initially described the Compass Counseling office layout. Compass Counseling operates in a two-story building. Respondent’s office is located on the first floor. The first floor includes a lobby with a receptionist desk. Through a door behind the receptionist desk is a hallway that connects three offices. Office 1 is located at the end of the hall with a door that faces the lobby. Office 2 is the middle office. Office 3 is adjacent to Office 2 and is closest to the lobby. Respondent used the second/middle office. It shared walls on both sides with Offices 1 and 3. On July 19, 2017, as Respondent was finishing his session with L.P., Ms. Flores was sitting in Office 3 waiting to confer with him about one of her clients. Her door was ajar, and she had a clear view of the hallway leading from Respondent’s office to the lobby. Ms. Flores described the hallway as a small, tight location. She also relayed that the office walls were very thin. Consequently, she could “absolutely” hear conversations coming from other offices, as well as the hallway. Ms. Flores has used all three offices for appointments, and her experience is the same: she can “hear anything” that was said in the adjoining offices. Ms. Flores expounded that, although she might not be able to make out individual words, she has clearly heard people crying, laughing, talking, or yelling through the doors and walls. Ms. Flores testified that, while waiting to speak with Respondent, she heard two voices talking back and forth in his office. The conversation was conducted in normal tones. Occasionally, she heard “giggling.” Ms. Flores further recalled that she did not hear either person raise their voice or yell or scream. Neither did she hear any cries of distress. Ms. Flores confidently asserted that if someone had shouted “what the f***? I’m married” twice while standing at the door of Office 2, she would have heard it. Ms. Flores declared that she did not hear any such outburst. What Ms. Flores did hear was the door to Respondent’s office open at the end of his appointment. Then, in her peripheral vision, she saw Respondent walk with a woman wearing a blonde ponytail to the lobby. Ms. Flores recalled that the two were talking “in a friendly manner” as they passed her door. Shortly, thereafter, Respondent returned, and she met him in his office. Ms. Flores “particularly” recalled that Respondent commented that he had just offered his patient information about an auto mechanic. Respondent also mentioned that he met his patient’s spouse and dog. (L.P.’s dog was in the back seat of Mr. Hulett’s car.) Finally, Ms. Flores offered her observations of Respondent’s psychotherapy practice. She found him friendly and professional. He was well-liked and considered a good therapist. Ms. Flores also recalled that Respondent called her about a week after the incident and divulged that he had been accused of sexual misconduct. Ms. Flores testified that Respondent appeared shocked and surprised by the allegations. Dr. Roberta Wildblood was also present at Compass Counseling on July 19, 2017, when L.P. met with Respondent. Dr. Wildblood is a clinical psychologist who has provided services at Compass Counseling since 2015. On July 19, 2017, Dr. Wildblood was scheduled to meet a patient at 2:00 p.m. in Office 1 (her office). However, she did not recall whether she was actually present when L.P. walked out of Office 2 with Respondent. She did not see or hear L.P. in the building that afternoon. However, similar to Ms. Flores, Dr. Wildblood testified that voices can be heard through the office walls. Dr. Wildblood echoed Ms. Flores in that she is not able to discern exact words while sitting in Office 1. Nevertheless, she has heard exclamations from counselors and clients. She has also heard a ball bouncing in another office. Dr. Wildblood also offered her experience working with Respondent. She described him as professional and highly regarded by his peers. She stated that he is gentle, kind, and an effective counselor. For her part, Ms. Douglass-Barnes agreed that voices can be heard through the office walls at Compass Counseling. To try and maintain privacy, Ms. Douglass-Barnes recalled that counselors routinely used noise machines in their rooms, and a radio played in the reception area. To counterbalance Ms. Douglass-Barnes’ testimony regarding the effect of L.P.’s mental health conditions, Respondent called Earl P. Taitt, Jr., M.D., to testify. Dr. Taitt is a psychiatrist who currently runs a private practice in Orlando, Florida. He is board-certified in psychiatry and neurology, as well as forensic medicine. Dr. Taitt testified as an expert in psychiatry. At the final hearing, Dr. Taitt described in detail the effect of the various mental health conditions from which L.P. suffers. He also offered his opinion on how L.P.’s mental illnesses affected her interpersonal functions with Respondent. Dr. Taitt stated that he formed his impressions based on a review of L.P.’s extensive medical and psychotherapy records, as well as his observations of her deposition and live testimony. Conversely, Dr. Taitt was careful to explain that he was not opining on L.P.’s truthfulness during her testimony at the final hearing. Further, he readily acknowledged that he has never personally examined or interviewed L.P. Neither does he possess any personal information regarding L.P.’s interaction with Respondent on July 19, 2017. Dr. Taitt’s diagnostic impression, based on his limited observations, is that L.P. suffers from borderline personality disorder. Dr. Taitt identified signs of borderline personality disorder in L.P.’s history of impulsivity, intense mood changes including anger (her most significant mood symptom), and unstable interpersonal relationships. Dr. Taitt explained that someone with borderline personality disorder exhibits abnormalities of perception relating to interpersonal relationships. Borderline personality disorder creates an impediment to social interactions and a person’s ability to accurately perceive the social interaction. Dr. Taitt opined that L.P.’s borderline personality disorder directly affected her ability to accurately relate to Respondent in his office on July 19, 2017. Consequently, when Respondent informed L.P. that their counseling sessions would be coming to an end, Dr. Taitt suggested that L.P. might have felt “a real or imagined abandonment.” Borderline personality disorder would have caused L.P. to experience a greater vulnerability to the fact that Respondent was leaving her treatment to another therapist. Therefore, L.P.’s report of sexual abuse may have been her vindictive reaction to the imagined abandonment. L.P. was lashing out at Respondent. Dr. Taitt further remarked that borderline personality disorder may have caused L.P. to misrepresent the facts of her narrative based on how she (incorrectly) perceived her interaction with Respondent in his office. Dr. Taitt also commented on the wide range of psychotropic medications L.P. was taking before and after July 19, 2017. He expressed that these medications could have impacted L.P.’s psychological conditions. Dr. Taitt further noted that the medication dosages L.P. was prescribed indicate that she was suffering from severe symptoms. Finally, Dr. Taitt discussed L.P.’s decision to proceed with her five-day trip to St. Augustine instead of immediately reporting the incident. He believed that going on a vacation following a sexual assault is atypical of someone who has actually experienced such misconduct. If L.P. truly encountered the inappropriate touching, Dr. Taitt thought that she would have disclosed it earlier. Lastly, Respondent presented the testimony of several former clients or parents of minor clients (Jessica Rosado, Erika Ana Camacho, and Marta Lopez). These witnesses described Respondent’s counseling methods and personal interactions during his therapy sessions. All were highly complimentary of his professionalism, and stated that Respondent never acted inappropriately with them. None of these witnesses, however, had personal knowledge of the allegations in this matter or knew L.P. Respondent presented them primarily for mitigation purposes. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Respondent engaged in behavior “which [was] intended to be sexually arousing” or that he touched L.P.’s buttocks on July 19, 2017. Accordingly, the Department failed to meet its burden of proving that Respondent committed “sexual misconduct,” which would support discipline under section 491.0111 and rule 64B-10.002(1).
Conclusions For Petitioner: Andrew James Pietrylo, Esquire Kristen M. Summers, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Carol C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order dismissing the Amended Administrative Complaint against Respondent, Gerard Kruse. DONE AND ENTERED this 16th day of August, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of August, 2019.
Findings Of Fact In 1993, the US Health Care Financing Administration gave Respondent approval to design and implement a pilot program for the delivery of mental health services in part of Florida. The pilot program is limited to Medicaid Area 6, which consists of Hardee, Highlands, Hillsborough, Manatee, and Polk counties. The purpose of the pilot program is to change the way in which the State of Florida pays for mental health services under the Medicaid program. At present, the State makes "fee-for- service" payments based on predetermined fees for defined services. RFP, 1.1 KK. Under the new method, the State will make "capitation" payments consisting of a monthly fee paid in advance to the contractor for each enrolled Medicaid recipient, regardless whether the enrollee receives the services during the payment period. RFP, 1.1.H. On November 23, 1994, Respondent issued Request for Proposals 9501 (RFP). The purpose of RFP 9501 is to procure a contract with a "single, comprehensive mental health care provider on a prepaid, capitated basis, to provide mental health benefits to Medicaid recipients who are residents of Medicaid Area 6 . . .." RFP, 1.4. The second paragraph of RFP 1.4 identifies four goals of the procurement: that the procurement proceed in a timely manner, (2) that the . . . RFP . . . encourages free and open competition, (3) that the procurement effort and resulting new contract operations be completed in a timely manner without disruption of service to Medicaid clients, and (4) that the procure- ment result in a single contractor for Area 6 with sufficient resources to provide services to all AFDC related and SSI Without Medicare Medicaid eligibles in Area 6. Section 2.2 requires that the contractor provide "[i]npatient hospital care for psychiatric conditions," "[o]utpatient hospital care for psychiatric conditions," "[p]sychiatric physician services," "[c]ommunity mental health care," "Mental Health Targeted Case Management," and "Mental Health Intensive Case Management." Section 2.3 defines the six categories of services identified in the preceding paragraph. Referring to "Community mental health care" as "Community Mental Health Services," Section 2.3 states: Community Mental Health Services Community Mental Health Services are rehabil- itative services which are psychiatric in nature, rendered or recommended by a psychia- trist; or medical in nature, rendered or recommended by a psychiatrist or other physician. Such services must be provided in accordance with the policy and service provision specified in the Community Mental Health Services Provider Handbook. The term "Community Mental Health Services" is not intended to suggest that the following services must be provided by state funded "Community Mental Health Centers" or to preclude state funded "Community Mental Health Centers" from providing these services: There are eight categories of mental health care services provided under community mental health: Treatment planning and review; Evaluation and testing services; Counseling, therapy and treatment services provided by a psychiatrist or physician; Counseling, therapy and treatment services provided by a direct service mental health care provider; Rehabilitative services; Children's mental health services; Specialized therapeutic foster care, Level 1 and 2; and Day treatment programs. Community mental health services for children in specialized therapeutic foster care and resi- dential treatment will be provided by HRS District 6 Alcohol, Drug Abuse and Mental Health Program Office to the same degree as in the past. Services are limited to those covered services provided by or under the recommendation of a psychiatrist or physician and related to a plan of care provided or authorized by a psychiatrist or physician, as appropriate, based on the patient's diagnosis. Targeted Case Management The contractor shall adhere to the requirements of the Medicaid Case Management Services Provider Handbook, but will not be required to seek certifications from the HRS Districts' Alcohol, Drug Abuse and Mental Health Program Office in regard to clients, agency designation, or mental health care case manager qualifications. Case manager training materials will be made available through the agency for reproduction by the contractor. Intensive Case Management This is a new mandatory service which is intended to provide intensive, team case management to highly recidivistic persons who have severe and persistent mental illness. Section 2.5 requires that the contractor "adhere to the following minimum staffing, availability, and access standards": The contractor shall provide access to medically necessary mental health care (with the exceptions noted in section 2.4 B.) The contractor shall make available and accessible facilities, service locations, and service sites and personnel sufficient to provide the covered services (specifically, non-hospital outpatient, emergency and assessment services) throughout the geographic area, within thirty minutes typical travel time by public or private transportation of all enrolled recipients. (The typical travel time standard does not apply to waiting time for public transportation--it applies only to actual time in transit.) The contractor must allow enrollees to choose one of the capitated services, as provided in Section 5.1 F.1., when the plan offers another service, not reimbursed under the contract, as a downward substitution. The maximum amount of time between an enrollee's request for mental health services and the first point of service shall be as follows: For emergency mental health services as defined in section 1.1 BB., service shall be immediate. For persons initially perceived to need emergency mental health services, but upon assess- ment do not meet the criteria for emergency care, they are deemed to require crisis support and services must be provided within twenty-three hours. For routine outpatient intake, assessment shall be offered within seven calendar days. Follow-up service shall be offered within fourteen calendar days after assessment. Minimum staffing standards shall be as follows, and failure to adhere to these staffing standards, or the staffing standards indicated in the winning proposal, whichever are greater, may result in termination of the contract (if the contractor's "staff" person does not fill one of the "key staff" positions listed on page 81, the staff persons may be a subcontractor.): * * * The contractor's outpatient staff shall include at least one FTE direct service mental health care provider per 1,500 prepaid members. The Agency expects the contractor's staffing pattern for direct service providers to reflect the ethnic and racial composition of the community. The contractor's array of direct service mental health care providers for adults and children must include providers that are licensed or eligible for licensure, and demonstrate two years of clinical experience in the following specialty areas: Adoption, Separation and loss, Victims and perpetrators of sexual abuse, Victims and perpetrators of physical abuse, Court ordered evaluations, and Expert witness testimony. Mental health care case managers shall not be counted as direct service mental health care providers. The contractor shall provide Spanish speaking and Spanish literate direct service providers at each service location at which there are Spanish speaking enrollees. The contractor shall provide staff approp- riately trained and experienced to provide psychological testing. The contractor shall provide staff approp- riately trained and experienced to provide rehabilitation and support services to persons with severe and persistent mental illness. For all persons meeting the criteria for case management as specified in the Medicaid Case Management Provider Handbook, the contractor shall adhere to the staffing ratio of at least 1 FTE mental health care case manager per 20 children, and at least 1 FTE mental health care case manager per 40 adults. Direct service mental health care providers shall not be counted as mental health care case managers. * * * Section 2.10 provides, in part: The contractor shall be responsible for the coordination and management of mental health care and continuity of care for all enrolled Medicaid recipients through the following minimum functions: A. Minimizing disruption to the enrollee as a result of any change in service providers or mental health care case manager occurring as a result of the awarding of this contract. An offeror may not propose rates exceeding Medicaid's upper payment limit, which "is that amount which would have been paid, on an aggregate basis, by Medicaid under fee-for-service for the same services to a demographically similar population of recipients." 4.11. Section 1.1 TTT defines "Upper Payment Limit" similarly: "The maximum amount Medicaid will pay on a capitated basis for any group of services, based upon fee-for- service Medicaid expenditures for those same services." Section 4.11 sets the range of payment rates at 92-98 percent of the upper payment limit. Each offeror is required to propose a specific payment percentage within the range. Section 4.17 allows offerors to propose a risk corridor of up to 16 percentage points plus and minus the proposed range. The corridor must be equal above and below the capitation rate. The RFP illustrates the risk corridor by applying an 8 point corridor to a 95 percent capitation rate. In this case, the contractor absorbs any plan costs up to 4 percent over the actual payments made to the plan by Respondent or retains any excess plan payments up to 4 percent over the actual costs. Beyond the corridor, the contractor and Respondent share equally in the costs or savings, subject to Respondent's upper payment limit. In no event, however, shall the contractor be entitled to payment from Respondent for "start- up" or "phase-down" costs. Section 4.18 addresses subcontractors: The contractor is fully responsible for all work performed under the contract resulting from the RFP. The contractor may, with the consent of the agency, enter into written subcontract(s) for performance of certain of its functions under the contract. The contractor must have subcontracts with all administrative and service providers who are not salaried employees of the plan prior to the commencement of services under this contract. The contractor shall abide by the requirements of Section 1128A(b) of the Social Security Act prohibiting HMOs and other such providers from making payments directly or indirectly to a physician or other provider as an inducement to reduce or limit services provided to Medicaid enrollees. The contractor must submit signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Any additional subcontracts must be submitted to the agency twenty days prior to the subcontract effective date. Subcontracts must be approved in writing by the agency's Technical Project Manager prior to the effective date of any subcontract. No subcontract which the contractor enters into with respect to performance under the contract resulting from the RFP shall in any way relieve the contractor of any responsibility for performance of its duties. Amendments to subcontracts must be approved by the agency before taking effect. The contractor shall notify the agency in writing prior to termination of approved subcontracts. The contractor will agree to make payment to all subcontractors within 35 days of receipt of all invoices properly documented and submitted by the subcontractor to the plan. All subcontracts executed by the contractor under the resulting contract must meet the following requirements and be approved by the agency in advance of implementation. All subcontracts must adhere to the following requirements: Be in writing. Specify the functions of the subcontractor. Identify the population covered by the subcontract. Specify the amount, duration and scope of services to be provided by the subcontractor, including a requirement that the subcontractor continue to provide services through any post- insolvency period. Provide that the agency and DHHS may evaluate through inspection or other means the quality, appropriateness, and timeliness of services performed. Specify that the subcontractor has read and agreed to the subcontract and the service provision requirements under section 2 of RFP, for services to be provided under the subcontract, and to the contractor's admission and retention criteria for the services the subcontractor will provide as indicated in the subcontractor's response to section 5.1 F3.b,(5). Provide for inspections of any record pertinent to the contract by the agency and DHHS. Specify procedures and criteria for extension and renegotiation. Provide for prompt submission of information needed to make payment. Require an adequate record system be maintained for recording services, charges, dates and all other commonly accepted information elements for services rendered to recipients under the contract. Require that financial, administrative and medical records be maintained for a period of not less than five years from the close of the contract and retained further if the records are under review or audit until the review or audit is complete. Prior approval for the disposition of records must be requested and approved by the contractor if the subcontract is continuous. Require safeguarding of information about recipients according to 42 CFR, Part 431, Subpart F. Require an exculpatory clause, which survives the termination of the subcontract including breach of subcontract due to insolvency, that assures that recipients or the agency may not be held liable for any debts of the subcontractor. Provide for the monitoring of services rendered to recipients sponsored by the contractor. Specify the procedures, criteria and requirements for termination of the subcontract. Provide for the participation in any internal and external quality assurance, utilization review, peer review, and grievance procedures established by the contractor. Make full disclosure of the method and amount of compensation or other consideration to be received from the contractor. Provide for submission of all reports and clinical information required by the contractor. Make provisions for a waiver of terms of the subcontract, if appropriate. Contain no provision which provides incentive, monetary or otherwise, for the withholding of medically necessary care. Require adherence to the Medicaid policies expressed in applicable Medicaid provider handbooks. Require that the subcontractor secure and maintain during the life of the subcontract worker's compensation insurance for all of its employees connected with the work under this contract unless such employees are covered by the protection afforded by the provider. Such insurance shall comply with Florida's Workers' Compensation Law; and Contain a clause indemnifying, defending and holding the Agency and the plan members harmless from costs or expense, including court costs and reasonable attorney fees to the extent proximately caused by an negligent act or other wrongful conduct arising from the subcontract agreement. This clause must survive the termination of the subcontract, including breach due to insolvency. The contractor shall give the agency immediate notification in writing by certified mail of any action or suit filed and prompt notice of any claim made against the contractor by any subcontractor or vendor which in the opinion of the contractor may result in litigation related in any way to the contract with the agency. In the event of the filing of a petition in bankruptcy by or against a principal subcontractor or the insolvency of said subcontractor, the contractor shall immediately advise the agency. The contractor shall assure that all tasks related to the subcontract are performed in accordance with the terms of the contract. The contractor shall identify any aspect of service that may be further subcontracted by the subcon- tractor. Subcontractors shall not be considered agents of the agency. For evaluation purposes, the RFP divides proposals into two parts: technical and rate, including any rate corridor. The six categories under the technical part, with point values in parentheses, are: Management Summary (0 points), Organization and Corporate Capabilities (100 points), Proposed Staffing Pattern and Licensure of Staff and Facilities (250 points), Operational Functions (400 points), Mental Health Care Service Delivery (400 points), and Transition Workplan (100 points). RFP, 6.1. Section 5.1.C describes the 100-point Organization and Corporate Capabilities as follows: The proposer shall provide in this tab a descrip- tion of its organizational and corporate capabi- lities. The purpose of this section is to provide the agency with a basis for determining the contractor's, and its subcontractors', financial and technical capability for undertaking a project of this size. For the purpose of this tab, the term proposer shall refer to both the contractor and its major subcontractors. It does not refer to the plan's "parent company" unless specifically indicated. Section 5.1 D states the elements of the 250-point Proposed Staffing Pattern and Licensure of Staff and Facilities. Section 5.1 D.3 requires the offeror to disclose "actual and proposed" FTE professionals, including psychiatrists, case managers, psychologists, nurses, and social workers. Section 5.1D.4 requires the offeror to explain how the plan will allocate staff to meet various demands, such as for adoption, sexual and physical abuse counseling, and psychological testing of children. Section 5.1 D.5 requires the proposal to: Describe how the plan will ensure that it has the staff resources appropriately trained and experienced to provide rehabilitative and support services to low income adults with severe and persistent mental illness and, under separate heading, to children with severe and persistent mental illness. Denote the number and percent of total FTEs which will be filled by persons with this type of experience and who will be providing these types of services. Explain the contractor's rationale for the staffing levels indicated and provide a brief, one or two line, description of the training and exper- ience of such persons who will provide these services under the plan. Section 5.1.E describes the elements of the 400-point Operational Functions, in part, as follows: Within this tab, the proposer shall explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations. Separately, the proposer shall address the member services the plan will offer, grievance procedures, quality assurance procedures, the contractor's proposed reporting systems, and the contractor's proposed handling of subcontracts. Service Area of Proposed Plan 42 CFR 434.36 Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement specified in section 2.5 A.1. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for child psychiatrists specified in Section 2.5 B.2. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for adult psychiatrists specified in Section 2.5 B.1. * * * Section 5.1.F describes the 400-point Mental Health Care Service Delivery category. Section 5.1 F states, in relevant part: This section shall include a detailed discussion of the proposer's approach to providing mental health care. The proposer must be able to document a demonstrated ability to provide a comprehensive range of appropriate services for both children and adults who experience impairments ranging from mild to severe and persistent mental illness. Plans must provide services up to the limits specified by the RFP. They are encouraged to exceed these limits. However, in no instance may any service's limitations be more restrictive than those specified in the Florida Medicaid fee- for-service program. The plan cannot require payments from recipients for any mandatory services provided under this contract. Summary of Services * * * The following is a summary list of the services which may be provided . . . * * * Optional Services Crisis Stabilization Unit * * * z. Other Services (List) * * * Care Coordination 42 CFR 434.52; 10C-7.0524(16), F.A.C. Attach the plan's written protocol describing the plan's care coordination system, which should include the plan's approach to care coordination, utilization review, and assuring continuity of care, such as, verifying medical necessity, service planning, channeling to appropriate levels of treatment, and develop- ment of treatment alternatives when effective, less intensive services are unavailable. The protocol should also address the following questions: * * * 3. Indicate how the contractor will establish services in such a way as to minimize disruption of services, particularly to high risk populations currently served by the department, for children and, separately, for adults. * * * Section 6.3 describes the criteria for evaluating proposals. For Proposed Staffing Pattern and Licensure of Staff and Facilities, the evaluation criteria include, at 6.3 B.3.c: The ability of the proposer to ensure it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support to children who are in the care and custody of the state or who have special needs, such as children who have been adopted or have been physically or sexually abused. About a year ago, Respondent issued RFP 9405, which also sought to procure mental health services on a capitated basis for Medicaid Area 6. Respondent received four proposals, which contained numerous deficiencies. Respondent later withdrew RFP 9405 for revisions to encourage more competition. Concerns over competition involve the role of Community Mental Health Centers (CMHC) in the procurement. CMHCs are publicly funded, not-for-profit entities that traditionally have provided five types of services: emergency, outpatient, day/night, inpatient, and prevention education. CMHCs now also operate crisis stabilization units and supply case management services, as well as specialized children's services, services for aged persons with severe and persistent mental illness, and services for persons with alcohol or drug dependencies. The RFP calls for a wide range of mental health care services, only part of which are community mental health services or other services presently provided by CMHCs. However, CMHCs constitute the only available network of existing providers of community mental health services to Medicaid clients in Medicaid Area 6. Medicaid payments account for about 30 percent of the revenue of Area 6 CMHCs. In late 1992, six CMHCs in Area 6 formed Florida Behavioral Health, Inc. in response to competition from one or more other provider networks, such as Charter. The competitive network of six CMHCs consisted of Manatee Glens Corp., Mental Health Care, Inc., Northside Mental Health Hospital, Peace River Center for Personal Development, Inc., Winter Haven Hospital, and Mental Health Services. Although the six CMHCs are not all of the CMHCs in Area 6, they provide nearly all of the community mental health services to Medicaid clients in Area 6. By early 1993, Florida Behavioral Health, Inc. formed Florida Health Partnership with Options Mental Health, Inc., which is a managed-care provider owned by First Hospital Corporation--a behavioral health management company. With the assistance of Florida Health Partnership, Options Mental Health, Inc. submitted a proposal in response to RFP 9405. An oral or written agreement between Florida Behavioral Health, Inc. and Options Mental Health, Inc. prohibited the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to RFP 9405. This agreement continues to prohibit the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to the RFP. The six CMHCs have shared with Options Mental Health, Inc. cost and utilization information. The importance of the unpublished cost information is unclear, and Petitioner has not yet made a public records request to obtain this information. The same is true of unpublished utilization information, which includes information on waiting lists for community mental health services. Any delay in providing community mental health services would have a bearing on the projected demand and thus the cost of a capitated plan. After withdrawing RFP 9405, Respondent revisited the requirement that offerors propose an existing network of providers. In an effort to encourage competition, Respondent deleted a requirement in RFP 9405 that proposals contain existing provider networks. Respondent substituted a requirement that proposals describe provider networks generally, without necessarily including names of subcontractors. Petitioner did not prove any fraudulent, illegal, arbitrary, or dishonest act by Respondent. The main thrust of Petitioner's case is that the effect of the RFP is illegal or arbitrary. Petitioner asserts that the RFP requires a sole source provider or, at minimum, precludes free and open competition. Petitioner argues that the RFP illegally and arbitrarily favors offerors of CMHCs, in partnership with CMHCs, or with subcontracts with CMHCs. Through testimony and argument, Petitioner asserts that various provisions of the RFP either exacerbate or fail to ameliorate the advantages enjoyed by CMHCs, especially due to RFP requirements of implementation of the new provider network in 60 days and with minimal disruption to Medicaid clients. RFP 1.4(2) encourages open and free competition. RFP 2.3 D disclaims any intent that only CMHCs may supply community mental health services. Petitioner's chief witness, Dr. Ronald Mihalick, testified that RFP 2.3 D favors CMHCs because state regulations have designated them the sole provider of community mental health services and government grants have funded their capital expenditures. Neither Dr. Mihalick, Petitioner's other witness, nor Petitioner's counsel has suggested a practical means by which to eliminate this advantage of CMHCs, which cannot, by executive or legislative fiat, be stripped of their buildings, equipment, or experienced staffs, nor of the advantages that may accrue to them by virtue of such assets. It would be counterproductive to eliminate CMHCs from direct or indirect participation in the subject procurement. Nor is Respondent required, if it were legally able, to assign to CMHCs the status of universal providers in order to eliminate illegality or arbitrariness from the RFP. The RFP seeks a broad range of mental health services, of which a substantial part are community mental health services. RFP 2.3 D represents a simple description of community mental health services and expressly negates the inference that only CMHCs may provide such services. RFP 2.3 E and F describes two of the five categories of mental health services: targeted case management and intensive case management, respectively. Intensive case management is a new service, and nothing suggests that Area 6 CMHCs have any direct experience that would give them an advantage in providing this new service, Targeted case management is an existing service provided by CMHCs. There is some doubt whether the RFP provides detailed cost information, including information about targeted case management. However, Petitioner has never made a public records request for such information from any of the CMHCs or Respondent. In any event, Petitioner has hardly presented sufficient evidence regarding targeted case management that the inclusion of such a service in the RFP is arbitrary or illegal. RFP 2.5 prescribes standards for minimum staffing, availability, and access. The minimum staffing standards do not require that existing service providers supply the specified services. For instance, "direct service mental health care providers" must be "licensed or eligible for licensure," as provided in RFP 2.5 B.3.a. Petitioner's objection is that the RFP expresses staffing standards in accordance with Medicaid guidelines, under which the CMHCs are already operating. This objection is puzzling because the procurement is for Medicaid services. In any event, the presence of such a provision does not render the RFP illegal or arbitrary for the reasons already stated. RFP 2.5 B.4 requires staffing ratios of one fulltime equivalency (FTE) per 20 mental health care case managers for children and one FTE per 40 mental health care case managers for adults. Again, though, the RFP does not require that such case managers must be currently employed by a CMHC or even currently providing such services. Petitioner legitimately objects to specifications expressed in terms of FTEs when applied to non-administrative services. The use of FTEs applies to fulltime employees, not to individual therapists who may see Medicaid clients on an occasional basis. The requirement that non-administrative services be expressed in FTEs unduly emphasizes process over product or outcome and is inconsistent with the spirit of the RFP. However, the use of FTEs in RFP 2.5 B.4 does not rise to the level of arbitrariness or illegality. As Respondent's chief witness, Marilyn Reeves, testified, an offeror may convert individual therapists to FTEs, even though the contractor may bear the risk of a faulty conversion formula. RFP 2.10 requires that the contractor implement the new capitated plan with minimal disruption to Medicaid clients, whose mental conditions may worsen from such disruption. Petitioner does not challenge this sensible provision. Petitioner instead argues that other pro-CMHC provisions preclude the implementation of a new plan with minimal disruption. Petitioner has failed to prove that the pro-CMHC provisions, except for 4.18 as discussed below, necessitate more than minimal disruption during the transition. RFP 4.17 provides that Respondent shall not pay the contractor's start-up or phase-down costs. Petitioner's objection is that government grants have paid for the capital expenditures of the CMHCs. For the reasons discussed in connection with RFP 2.3 D, Petitioner has failed to prove how this provision is arbitrary or illegal. RFP 5.1 D assigns 250 points for the proposed staffing pattern and requires the offeror to disclose "actual and proposed" FTE professionals, such as psychiatrists, case managers, and social workers. An offeror that has already identified its personnel may be able to provide a more detailed description and earn more points than another offeror that has yet to find its subcontractors. Likewise, RFP 5.1 D.5 requires a discussion of FTEs, although an offeror with as yet unidentified subcontractors probably can satisfy this section with a more generic discussion and not lose points. In any event, to the extent that the specification in terms of FTEs favors CMHCs, such a provision is not so onerous or unnecessary as to be arbitrary or illegal, as discussed in connection with 2.5 B.4. RFP 5.1 E assigns 400 points for operational functions and requires the offeror to "explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations." Unlike RFP 5.1 C, which requires a proposal to address the contractor and its "major subcontractors," 5.1 E does not mention subcontractors, so this provision favors CMHCs even less than the other provisions of 5 and 6. Perhaps for this reason, neither Petitioner's witnesses nor Petitioner's proposed recommended order addressed RFP 5.1 E. RFP 5.1 F requires an offeror to provide a "detailed discussion," in which it shall "document a demonstrated ability to provide a comprehensive range of appropriate services . . .." An offeror with as yet unidentified subcontractors will likely be unable to supply nearly as much detail as an offeror with subcontractors already in place, but this provision would, if challenged, not be deemed arbitrary or illegal. However, Petitioner challenges only RFP 5.1 F.1 (Optional Services) and 5.1 F.4.a.3. Section 5.1 F.4.a.3 reiterates the requirement that the new capitated plan be implemented so as to "minimize disruption of services." As noted above, Petitioner of course does not object to this requirement, but uses it to show how other provisions are arbitrary or illegal. Petitioner objects to the portion of 5.1 F.1 identifying crisis stabilization units as an Optional Service. Although only CMHCs are licensed to operate crisis stabilization units, the same services are available from other sources, although often not as economically. Moreover, the crisis stabilization unit is only an Optional Service, which Respondent mentioned only for illustrative purposes. The last-cited option, "Other Services (List)," encourages offerors to devise creative options that may not involve such traditional providers as crisis stabilization units. RFP 6.3 B.3.c requires the offeror to ensure that "it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support . . .." Satisfaction of the criteria of 6.3 B, like 5.1 C, D, and F, is easier for CMHCs and harder for contractors with as yet unidentified subcontractors. However, the advantage conferred upon CMHCs is not so great as to render 6.3 B arbitrary or illegal. To varying degrees, RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3 B.3.c prefer CMHCs or offerors affiliated with CMHCs. These provisions potentially conflict with the RFP provisions encouraging free and open competition and prohibiting more than minimal disruptions in service. The potential conflicts are partially attenuated by the ability of an offeror, prior to submitting a proposal, to identify subcontractors that may provide similar services to non-Medicaid clients or provide similar services to Medicaid clients in other areas of Florida or other states. RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3B impose qualitative standards upon the contractor and any subcontractors, whose employees have direct contact with the Medicaid clients. Non-CMHC offerors may nonetheless be able to identify, at the proposal stage, their subcontractors so as to earn the maximum points in these categories. For instance, offerors may find non-CMHC subcontractors providing community mental health services to non- Medicaid clients or to Medicaid clients elsewhere in Florida or the United States. With greater difficulty, non-CMHC offerors with as yet unidentified subcontractors may be able to project, at the proposal stage, features of their subcontractors. They may not be able to score as well as CMHCs and other offerors with already identified networks of community mental health service providers. However, to the extent that non-CMHCs are disadvantaged by these provisions, Petitioner has not shown that the inclusion of these provisions is arbitrary or illegal. These provisions ensure the delivery of quality mental health services. As likely as not, Petitioner has included these provisions after careful consideration of the benefits of further competitiveness and the costs of further limitations upon the participation of CMHCs. The final provision challenged by Petitioner is RFP 4.18, which acknowledges that the contractor may not itself provide the mental health services, but may contract with subcontractors for the provision of these services. Requiring that the contractor have subcontracts prior to the commencement of services under the new capitated plan, Section 4.18 adds that the contractor must submit for Respondent's written approval: signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Petitioner's challenge to RFP 2.3 D, E, and F; 2.5 A and B.3 and 4; and 4.17 fails because these provisions confer upon CMHCs an insignificant advantage, an advantage upon that could not be removed without eliminating CMHCs from the procurement, or an advantage while specifying an important substantive requirement. Petitioner's challenge to RFP 5.1 D.5, 5.1 E.1, 5.1F.1, and 6.3 B.3.c fails because these provisions, even if conferring significant advantages upon CMHCs, impose important qualitative requirements upon the delivery of mental health services to Medicaid clients. However, RFP 4.18 is different from these other provisions. It does not involve the actual delivery of mental health services to Medicaid clients. Section 4.18 dictates only how long after signing the contract with Respondent the contractor has to implement the new capitation contract. The advantage conferred by 4.18 upon CMHCs is neither trivial nor necessary. The federal waiver runs two years from the actual start-up date of the new capitation plan. Obviously, an inordinate delay in implementation might suggest that the contractor is unable to do the job, but nothing in the record suggests that 60 days marks the beginning of an inordinate delay. Respondent understandably wants to get the pilot project started quickly, presumably in anticipation of important cost savings. But these considerations do not rise to the importance of other provisions involving the actual delivery of mental health services to Medicaid clients. Non-CMHCs, especially offerors with as yet unidentified subcontractors, face a considerable task in plan implementation. For this procurement, only one offeror will have the assistance of the CMHCs, which gives that offeror a clear advantage in at least the community mental health and targeted case management categories. There is no good reason to increase this advantage by imposing an unrealistically short implementation timeframe on contractors. On the other hand, there are two reasons why the 60-day implementation timeframe is arbitrary and illegal: it conflicts with RFP provisions encouraging open competition and it conflicts with RFP provisions prohibiting more than a minimal disruption to clients. The new capitation plan represents a marked departure from past practice. The successful contractor is assuming considerable financial risks when it sets its fees and risk corridor, if any. This risk is spread over a wide geographic area containing some of Florida's most densely populated areas. Anticipated cost savings to the State may result in narrowed profit margins before the contractor can safely realize savings from reductions in the cost of mental health services provided to Medicaid clients. The success of the capitation plan is jeopardized if the contractor underestimates the revenue needed for the successful operation of the plan. The offeror without subcontractors at the time of submitting a proposal needs time to enlist the cooperation of CMHCs or other subcontractors. A witness of Respondent described a possible scenario in which CMHCs declined to cooperate with the contractor and were forced to terminate employees. Although these employees would be available to the contractor, they would not likely be available in a 60-day timeframe. A multitude of tasks confront the non-CMHC contractor, especially if the contractor does not have a subcontractor network in place when submitting the proposal. Not surprisingly, Respondent's witnesses did not offer a spirited defense of the 60-day implementation timeframe, as is partly illustrated by the following testimony of Respondent's chief witness: Q: Is there a reason that the language on Page 61 says "must have signed subcontract within 60 days?" A: No. What it is trying to get at there is that if you are going to start being operational within 60 days, you got to know that you got to get those subcontracts approved by us prior to being able to do that. Respondent's witness readily testified that the deadline would not be enforced, if the enforcement jeopardized the welfare of the Medicaid clients. Of course, given the vulnerability of the clients, Respondent would not require the implementation of an unfinished plan at the end of the contractual implementation timeframe, regardless of the duration of the implementation timeframe. But a rational deadline for implementation would not so readily invite discussions of waivers and extensions. The presence of an impractical deadline misleads offerors. Some offerors may obtain an unfair advantage by structuring their proposals without regard to the implementation timeframe, secure in the knowledge that it will not be enforced. Other offerors may limit Optional Services or avoid more creative delivery or administrative programs in order to ensure that their plans can be implemented within the arbitrarily short implementation timeframe. To eliminate arbitrary and illegal conflicts with other RFP provisions encouraging open competition and prohibiting more than minimal disruptions in service, the implementation timeframe of 60 days must be extended to at least 120 days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order amending RFP 4.18 by inserting "120" days for "60" days in the second paragraph and making any necessary conforming changes elsewhere in the RFP, and, after making these changes, proceed with the subject procurement. ENTERED on January 31, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 31, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: (except that "poisonous" in paragraph 2 is rejected as melodramatic and unsupported by the appropriate weight of the evidence): adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence, except for 4.18. 6-7: adopted or adopted in substance, except that Petitioner did not challenge 5.1 E at the hearing or in the proposed recommended order. 8: rejected as irrelevant. 9-13: adopted or adopted in substance. 14: rejected as unsupported by the appropriate weight of the evidence. Petitioner did not prove that the actual information shared by the CMHCs was crucial--only that certain information could theoretically be crucial. 15: adopted or adopted in substance, although other CMHCs operate in Area 6, but do not possess much share of the community mental health services market. 16-17: rejected as irrelevant. 18: adopted or adopted in substance, except for the last sentence, which is rejected as unsupported by the appropriate weight of the evidence (except for 4.18). 19-20: adopted or adopted in substance. 21: rejected as repetitious. 22: adopted. 23-25: adopted or adopted in substance, except for last sentence of paragraph 25, which is rejected as unsupported by the appropriate weight of the evidence. 26-27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. 29-33: adopted or adopted in substance, except for last sentence of paragraph 33, which is rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37-38: adopted or adopted in substance, although this was hypothetical testimony of one of Respondent's witness, not a formal statement of Respondent's "position." 39 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 39 (second sentence): adopted. 40-44 (second sentence): adopted or adopted in substance. 44 (third sentence): rejected as recitation of evidence. 45: adopted. 46-47: adopted or adopted in substance. 48: rejected as unsupported by the appropriate weight of the evidence. 49: rejected as irrelevant and, except for 4.18, unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6: adopted or adopted in substance, except for 4.18. 7: adopted or adopted in substance. 8: adopted or adopted in substance, at least to the extent that Petitioner failed to prove the contrary. 9 (except last sentence): adopted or adopted in substance. 9 (last sentence): rejected as speculative. 10-16: adopted or adopted in substance, although the extent of Petitioner's ability to respond satisfactorily is questionable, as is the rationale for the use of FTEs for non-administrative positions. Additionally, all proposed findings that RFP provisions do not place non-CMHCs at a disadvantage, when such proposed findings conflict with findings in the recommended order, are rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Seann M. Frazier Mark A. Emanuele Panza Maurer P.A. 3081 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 Paul J. Martin William H. Roberts Assistant Attorneys General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
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
