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Item P11BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 21, 2012 Division: County Attorney Pedro Mercado/ Bulk Item: Yes _ No XX Staff Contact Person: Suzanne Hutton, 292-3470 AGENDA ITEM WORDING: Approval of Exhibit 6 formalizing the County's election to take the Settlement Option in the matter of Florida Association of Counties, et. al., v. the Florida Department of Revenue and the State of Florida Agency for Health Care Administration (Medicaid) lawsuit. ITEM BACKGROUND: Monroe County joined 56 other counties, and the Florida Association of Counties (FAC), in filing a lawsuit challenging the enactment of HB 5301. The lawsuit challenged the constitutionality of the law's enactment and the legality of back billing the counties for invoices dating back to November 2001. Pursuant to negotiation, the overall liability to the 67 counties has been reduced from $373 million to $162 million. Monroe County's Medicaid liability has been reduced from over $3.3 million to $1,635,829.41. The settlement includes provisions for periodic payment of the backlog over a period of 5 years. The settlement also allows the County to pay the back log from a revenue source of the County's choosing rather than having the County's portion of Revenue Sharing withheld. The FAC and counsel are continuing to negotiate language regarding the correction of billing errors and the procedures for challenging billing errors. On 9/10/12, the BOCC approved Exhibit One and authorized execution by the County Administrator. Exhibit 6 formalizes the County's election to take the Settlement Option in this matter. PREVIOUS RELEVANT BOCC ACTION: Approved joining lawsuit at the April 2012 regularly scheduled BOCC meeting. BOCC 9/10/12 approved Exhibit 1 and authorized County Administrator to execute CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: $1,635,829.41 INDIRECT COST: BUDGETED: Yes No XX DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: $1,635,829.41 SOURCE OF FUNDS: (TBD) REVENUE PRODUCING: Yes o xx AMOUNT PER MONTH Year APPROVED BY: County Atty 9 4 OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required _ DISPOSITION: AGENDA ITEM # EXHIBIT 6 September 21, 2012 Stuart Williams, Esquire General Counsel State of Florida Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Email: stuart.williams@ahca.myflorida.com Re: Verified Stipulation Dear Mr. Williams & Mr. Mellichamp: Joseph C. Mellichamp, III, Esquire Chief Assistant Attorney General Florida Office of the Attorney General Revenue Litigation Bureau 400 S. Monroe Street, # PL-01 Tallahassee, Florida 32399 Email: joe.melhchamp@myfloridalegal.com The purpose of this letter is to verify that Monroe County (the "County") has elected to take the Settlement Option provided in paragraph 3 of the Stipulation Providing for Dismissal of Same Parties and Abatement of Case for Remaining Parties filed in Alachua County, Florida et al v. Elizabeth Dudek et al; Case No.: 2012-CA-1328 in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. The County's election to take this option was made by Motion of the Board of County Commissioners of Monroe County, Florida. (Seal) Attest: DANNY L. KOLHAGE, CLERK By: Clerk cc: Ginger Delegal, General Counsel Florida Association of Counties BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: EXHIBIT 6 Mayor ADDITIONAL BACK-UP * 3:00 P.M. BOCC Special Meeting * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 10, 2012 Division: County Attorney Bulk Item: Yes _ No XX Staff Contact Person: Suzanne Hutton, 292-3470 AGENDA ITEM WORDING: Discussion and approval of settlement agreement in the Florida Association of Counties, et. al., v. the Florida Department of Revenue and the State of Florida Agency for Health Care Administration (Medicaid) lawsuit and approval for the County Administrator to execute Exhibit One. ITEM BACKGROUND: Monroe County joined 56 other counties, and the Florida Association of Counties (FAC), in filing a lawsuit challenging the enactment of HB 5301. The lawsuit challenged the constitutionality of the law's enactment and the legality of back billing the counties for invoices dating back to November 2001. Pursuant to negotiation, the overall liability to the 67 counties has been reduced from $373 million to $162 million. Monroe County's Medicaid liability has been reduced from over $3.3 million to $1,635,829.41. The settlement includes provisions for periodic payment of the backlog over a period of 5 years. The settlement also allows the County to pay the back log from a revenue source of the County's choosing rather than having the County's portion of Revenue Sharing withheld. The FAC and counsel are continuing to negotiate language regarding the correction of billing errors and the procedures for challenging billing errors. The recommendation from counsel is to accept the settlement. This item is being placed on the agenda as a placeholder since the language of the settlement agreement is still being finalized. The settlement agreement will be provided once it is finalized. PREVIOUS RELEVANT BOCC ACTION: Approved joining lawsuit at the April 2012 regularly scheduled BOCC meeting. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: $1,635,829.41 INDIRECT COST: BUDGETED: Yes No XX DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: $1,635,829.41 SOURCE OF FUNDS: (TBD) REVENUE PRODUCING: Yes —No xx AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included To Be Provided Not Required _ DISPOSITION: AGENDA ITEM # Dudek v. Alachua Stipulation Providing for Dismissal of Some Parties and Abatement of Case for Remaining Parties Contains multiple WHEREAS clauses, reciting many concessions and joint work that has been accomplished since the filing of the litigation. Among these accomplishments are the following: • A 57% decrease in the statewide backlog amounts owed • The opportunity for all counties to make a one time partial or total payment on the certified backlog amount and avoid or reduce revenue share withholding • An identification of errors in the billing system • A commitment to the creation of a joint workgroup between FAC and AHCA to continue working on problem identification and solutions • An Advance Refund Request process that allows for review and withholding from payment disputed bills until further research can be conducted • A Back End Refund Request process to dispute and resolve errors in billing • An offer to those counties challenging the backlog in a Chapter 120 proceeding, a 90 day automatic stay in the proceedings so that negotiations can be conducted, individually between the county and AHCA • Standardized and date certain review processes for bills; receipts for payments made and tracking of refund requests • The opportunity to avoid Half Cent withholding by making direct monthly payments, by check or wire transfer Additional recognitions are contained in the Stipulation. As to the active parts of the Stipulation, there are three categories of counties: settling, abating, and non -plaintiff. These categories are explained below. SETTLEMENT OPTION Paragraph (3) Dismiss with prejudice Counts I and II; dismiss without prejudice Count III. In exchange for this dismissal, the settling counties are offered a direct periodic payment plan for the backlog of the county's choosing (e.g., monthly, quarterly). This allows the settling counties to avoid revenue share withholding for the backlog altogether. The periodic direct payment plan option is available to all counties, whether challenging the backlog in a 120 proceeding or not, and whether a party to the litigation or not (para 11)) 1 c:►usersLoeters-katherinelappdatallocalimiaosoftlwindowsitempororyintemet files\content.outlook\sOxu228J\social services - mediciad - stipulation summary 8 3112.docx Settling counties will have the option to enter into a payment plan (monthly, quarterly, bi-annually) for the backlog. This option allows the county to choose the revenue source from which to pay the backlog amount for that incremental time. Pre -payment, by the 5th of the month, quarter, other longer increment (para (7)) Can only miss one payment, then cannot have access to plan anymore. All future payments will be automatically deducted from revenue sharing (para (8)) AHCA acknowledges that the settling counties do not waive any right to assert any valid affirmative defenses it would otherwise have been able to assert in an administrative proceeding under the law being challenged by this litigation. A county exercises this settlement choice by signing the Notice, found at Exhibit 6. The notice must be sent by email and US Mail by September 12, 2012. A settling county that is not able to attain the final, formal approval necessary to settle, due to the short time frame, may provide a Tentative Notice of Acceptance (Exhibit 1), signed by the Chair of the BoCC or a member of senior staff (defined term), by September 12, 2012, the same as a settling county. The formal authority must be obtained by October 12, 2012. ABATEMENT OPTION Paragraph (4) For those counties choosing to remain in the litigation. The litigation is being held in abeyance until December 31, 2012. Any county or party can, however, individually dismiss the complaint without prejudice at any time and either refile an action on its own behalf or not. This option is the default option. No notice is required to be provided in order to be in this category. NON-PARTY COUNTIES Have the same access to the settlement option, and the periodic direct payment plan on the backlog. A limited waiver must be provided (Exhibit 5). These counties would be foregoing the opportunity to make a circuit court challenge to HB 5301 on the basis of a violation of the Unfunded Mandates Provision of the Florida Constitution. The waiver must be emailed and postmarked by September 12, 2012. 2 c:iusersipeters-katherineloppdatallocal�mkrosa t�windowsitempamryFntemet files\content.outlook\sOxu228j\social services - mediciad - stipulation summary 8 3112.docx IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA ALACHUA COUNTY, FLORIDA; ET AL, Plaintiffs, VS. ELIZABETH DUDEK, in her official capacity as SECRETARY of the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION; and LISA VICKERS, in her official capacity as EXECUTIVE DIRECTOR of the STATE OF FLORIDA, DEPARTMENT OF REVENUE, Defendants. Case No.: 2012-CA-1328 STIPULATION PROVIDING FOR DISMISSAL OF SOME PARTIES ANID ABATEMENT OF CASE FOR REMAINING PARTIES This Stipulation Providing for Dismissal of some Parties and Abatement of Case for Remaining Parties is entered into between Plaintiffs ALACHUA COUNTY, FLORIDA; BAY COUNTY, FLORIDA; BREVARD COUNTY, FLORIDA, BRADFORD COUNTY, FLORIDA, BROWARD COUNTY, FLORIDA, CHARLOTTE COUNTY, FLORIDA, CTTRUS COUNTY, FLORIDA; CLAY COUNTY, FLORIDA; COLLIER COUNTY, FLORIDA; DESOTO COUNTY, FLORIDA; DDGE COUNTY, FLORIDA; DUVAL COUNTY, FLORIDA; ESCAMBIA COUNTY, FLORIDA, FLAGLER COUNTY, FLORIDA; FRANKLIN COUNTY, FLORIDA; GADSDEN COUNTY, FLORIDA; GILCHRIST COUNTY, FLORIDA, GULF COUNTY, FLORIDA, HAMILTON COUNTY, FLORIDA; HARDEE COUNTY, FLORIDA, HENDRY COUNTY, FLORIDA; HERNANDO COUNTY, FLORIDA; HIGHLANDS COUNTY, FLORIDA; Page 1 of 15 HILLSBOROUGH COUNTY, FLORIDA, INDIAN RIVER COUNTY, FLORIDA, LAFAYETTE COUNTY, FLORIDA; LAKE COUNTY, FLORIDA; LEE COUNTY, FLORIDA; LEON COUNTY, FLORIDA; LEVY COUNTY, FLORIDA; LIBERTY COUNTY, FLORIDA, MADISON COUNTY, FLORIDA; MANATEE COUNTY, FLORIDA; MARION COUNTY, FLORIDA; MARTIN COUNTY, FLORIDA; MIAMI-DADE COUNTY, FLORIDA; MONROE COUNTY, FLORIDA; NASSAU COUNTY, FLORIDA; OKALOOSA COUNTY, FLORIDA; OKEECHOBEE COUNTY, FLORIDA; OSCEOLA COUNTY, FLORIDA, PASCO COUNTY, FLORIDA; PINELLAS COUNTY, FLORIDA; POLK COUNTY, FLORIDA, PUTNAM COUNTY, FLORIDA; SANTA ROSA COUNTY, FLORIDA, SARASOTA COUNTY, FLORIDA, SEMINOLE COUNTY, FLORIDA; ST. JOHNS COUNTY, FLORIDA; ST. LUCIE COUNTY, FLORIDA; SUWANNEE COUNTY, FLORIDA, TAYLOR COUNTY, FLORIDA; VOLUSIA COUNTY, FLORIDA, WAKULLA COUNTY, FLORIDA; and WALTON COUNTY, FLORIDA; (hereafter the "Counties") and the FLORIDA ASSOCIATION OF COUNTIES (hereafter the "Association") and the Defendants, ELIZABETH DUDEK in her official capacity as Secretary of the State of Florida Agency for Health Care Administration (hereafter the "Agency") and MARSHALL STRANBURG in his official capacity as Interim Executive Director (in place of former Executive Director, LISA VICKERS) of the State of Florida Department of Revenue (hereafter the "Department"), collectively Plaintiffs and Defendants are hereafter the "Parties." WITNESSETH: WHEREAS, Plaintiffs have filed a Complaint against Defendants challenging the constitutionality of certain legislation (i.e., HB 5301), which was adopted by the House and Senate in the 2012 Legislative Session and signed into law by the Governor on March 29, 2012. Page 2 of 15 HB 5301 is now known as Chapter 2012-33, Laws of Florida. Section 12 of Chapter 2012-33 amends section 409.915, Florida Statutes, which relates to county contributions to Medicaid. WHEREAS, Section 12 of Chapter 2012-33 (hereafter, "Section 12") amends section 409.915, Florida Statutes, as it previously existed to include. a. Section 12 requires the Agency to certify to each county the amount of such county's unpaid billings from November 1, 2001, through April 30, 2012 (the "Prior Unpaid Amounts"). b. Section 12 provides that Counties may challenge the Prior Unpaid Amounts in an administrative process under chapter 120, Florida Statutes. Counties that do not challenge the Prior Unpaid Amounts shall pay only 85% of that county's Prior Unpaid Amounts. Counties that prove by a preponderance of the evidence that the Prior Unpaid Amounts were incorrect will be entitled to a credit on future payments. C. Section 12 implements a "collection enforcement mechanism" in order to require Counties to pay for the Prior Unpaid Amounts. Over a five year period beginning October, 2012, the Department will deduct from each county's monthly distribution pursuant to section 218.26, Florida Statutes (the "County Revenue Sharing Funds"), that county's portion of the Prior Unpaid Amounts as certified by the Agency. The Department must leave sufficient County Revenue Sharing Funds to service outstanding debt secured by such funds. d. Section 12 provides that, beginning May 7, 2012 and continuing on the 7th day of each month thereafter, the Agency will certify the Counties' monthly share of Medicaid reimbursement ("Future Billings") and thereafter the Department will deduct Page 3 of 15 Half Cent Sales Tax Funds from each County's distribution pursuant to section 218.61, Florida Statutes. Section 12 further provides, however, that the Department must leave sufficient Half Cent Sales Tax Funds to service outstanding debt secured by such funds. e. Section 12 provides that Counties may contest Future Billings by requesting a refund under a process to be determined by the Agency, the Department, and FAC - which process is currently under rule development by the Agency. If the Agency determines the refund request is appropriate, the Department may refund the amount to the county from the General Revenue Fund or issue the refund in the form of a credit against the Future Billings which process is currently under development by the Agency. WHEREAS, Plaintiffs have concern with the following circumstances, provisions or practices among others: a. Section 12 requires monthly payment of prior unpaid amounts from each County's monthly distribution pursuant to § 218.26, Florida Statutes, of the Counties' revenue sharing monies rather than from a revenue source of each County's choosing. b. Section 12 requires monthly future billings to be paid from the Counties' distribution pursuant to § 218.61, Florida Statutes of the shared Half Cent Sales Tax Funds rather than from a revenue source of each County's choosing. WHEREAS, the Complaint filed by Plaintiffs includes three (3) counts. The first and second counts assert challenges pursuant to Article VU, section 18(a) and (c), Florida Constitution, for violation of the unfunded mandate provisions. The third count asserts that Page 4 of 15 unpaid claims extending from 2001- 2008 are time barred pursuant to §§ 95.11(3)(0 and (p) and 95.11(6), Florida Statutes (2011). errors. WHEREAS, the Parties have worked together to identify and correct billing system WHEREAS, the Counties have had unprecedented access to Agency staff for collaboration in seeking solutions. WHEREAS, the Parties, are creating a joint Work Group comprised of representatives from the Agency and the Association (on behalf of the Counties) to raise, address and solve ongoing concerns and problems, that will meet on a regularly scheduled basis. WHEREAS, to facilitate the orderly payment of these claims, the Agency has authorized the Counties to make a one time prepayment in whole or in part, to reduce or avoid the burden of revenue share withholding. WHEREAS, in order to administer these claims, the Agency has permitted counties to dispute Prior Unpaid Amounts (sometimes referred to as "Backlog" claims) based upon Agency policies in effect at the time each claim was originally disputed. WHEREAS, working in conjunction with the Counties, the Agency has created and implemented an Advanced Refund Request (ARR) process, allowing a prepayment dispute process on claims, and extending that process through April 2013. WHEREAS, working in conjunction with the Counties, the Agency has created and implemented a Back End Refund Request (BERR) process, including the allowance of filing BERRs on the denied ARRs, and thus allowing a prepayment dispute process on these claims as well, with finality and appeal rights. Page 5 of 15 WHEREAS, the Agency, working in conjunction with the Counties, has provided for direct monthly payments on prospective bills in order to allow Counties to choose to avoid revenue share withholdings. WHEREAS, the Florida Department of Children and Families ("DCF"), working in conjunction with the Agency and the Counties has permitted the Counties unprecedented access to the DCF Medicaid eligible recipient address database. WHEREAS, the Agency working in conjunction with the Counties, has provided for a 60 day County review cycle, and a date certain for receipt of monthly statements on the second business day of the month, as well as a process of tracking payments, refunds, and credits on a monthly basis. WHEREAS, the Agency working in conjunction with the Counties, has created detailed time frames for responses and dispute resolution methods to avoid such backlogs from ever happening again. WHEREAS, the Agency working in conjunction with the Counties, has worked to enhance the fairness of the collection system by: 1) providing a $0 certification for the first month that HB 5301 was to be implemented, on May 7, 2012, 2) allowing for direct monthly payments on prospective bills to allow Counties to choose to avoid Half Cent Sales Tax withholding; 3) authorizing a one-time prepayment in whole or in part, by 11:59 p.m., Eastern Standard Time, on September 13, 2012 to allow Counties to choose to reduce or avoid the burden of revenue share withholding; and 4) has provided preliminary backlog statements in advance of the August 1, 2012 statutory certification date in order to facilitate the review and resolution of these disputed claims. Page 6 of 15 WHEREAS, the Counties, working in conjunction with the Agency and in order to show their willingness to pay their fair share of the State's Medicaid payment, have paid those amounts which are accurate, and due and owing during the pendency of this litigation. WHEREAS, the Agency has begun the rule making process as required by Section 12 and has been working cooperatively with the Counties and the Association in an effort to address many of the Counties' concerns regarding how the collection process will be administered in the future and how the monthly payments for prior and future billings might be made directly to the Agency from revenue sources of the county's choice rather than providing for certification and automatic deduction by the Department from county revenue sources shared with the State. WHEREAS, the Parties recognize that the Chapter 120 process has been legislatively sanctioned as the forum for disputes relating to the backlog amounts under HB 5301, and no abridgement of any rights to make such challenges is contemplated by this Stipulated Settlement and Dismissal. WHEREAS, the Parties recognize that the Department's role is primarily ministerial and the Department does not have a role in disputing Medicaid billings unless there is an issue of the protection of existing bond commitments required under HB 5301. WHEREAS, the Parties by entering into this stipulation recognize that the circumstances of the Counties on an individual basis may differ substantially; i.e., some Counties may be willing to accept the 15% discount available to Counties that do not challenge the Agency's certification, some Counties may want to bring an action under Chapter 120 challenging the prior unpaid amount that the Agency has certified including the right to assert a claim for what Page 7 of 15 the Counties perceive to be stale or time barred. Some Counties will be willing to dismiss their claims and some, though not prepared to dismiss their claims at this time are willing to agree to an abatement to facilitate further resolution of this matter, for an undefined period, but no later than December 31, 2012. NOW THEREFORE, in consideration of the mutual promises set forth herein and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: herein. 1. The above recitals are true and correct and by this reference are incorporated 2. Those Counties and Association under this stipulation may choose between one of the two options (i.e., a SETTLEMENT OPTION or an ABATEMENT OPTION) set forth in paragraphs 3 and 4 below. 3. The SETTLEMENT OPTION is for Counties (or the Association) that intend to withdraw from this litigation. This includes both Counties that do not intend to challenge the Prior Unpaid Amounts and Counties that do intend to challenge the Prior Unpaid Amounts under Chapter 120 Florida Statutes. As to these Counties the Complaint will be deemed to be dismissed with prejudice as to Counts I and II and without prejudice as to Count III. As to these Counties, the Agency, as provided in paragraph 7 below, will accept periodic direct payment of such County's Prior Unpaid Amount. The Agency acknowledges that a county which enters into this Agreement does not thereby waive the right to assert any valid affirmative defense it would otherwise have been able to assert in an administrative proceeding Pursuant to Section 409.915(7)(a), Florida Statutes. Counties choosing the SETTLEMENT Page 8 of 15 OPTION must provide notification of this choice to the Agency by sending a scanned copy of a signed and verified stipulation form (the "Stipulation Form") attached hereto as Exhibit 6 by email and U.S. Mail to the Agency's General Counsel (with a copy to the Association) which is emailed and post marked no later than September 12, 2012. An initial list of those Counties (or Association) choosing the SETTLEMENT OPTION is set forth in Exhibit 2. 4. The ABATEMENT OPTION is for Counties (or the Association) that intend to remain in this litigation. These Counties (including the Association) together with the Agency and the Department agree that this litigation will be held in abeyance by mutual agreement to facilitate further resolution of this matter for an undefined period but no later than December 31, 2012. This abatement is to the litigation only, and all provisions and deadlines of HB 5301 continue to take effect as set forth therein. The Parties acknowledge that the abatement applies only to the litigation and does not abate or otherwise affect the requirements imposed on the Parties by statute. Provided that nothing in this Stipulation shall prevent an abating county from individually dismissing the Complaint without prejudice and re -filing an action on its own behalf. An initial list of those parties choosing the ABATEMENT OPTION is set forth in Exhibit 3. 5• The Agency further agrees that any County (whether agreeing to settle or not) filing a Chapter 120 challenge of the Prior Unpaid Amount will be offered the opportunity to abate those proceedings to facilitate further resolution of the matter for a period not less than 90 days, which period may be extended upon the mutual agreement of the parties to such proceeding. Page 9 of 15 6. The Parties agree that Exhibits 2 and 3 of the Stipulation can be amended by the Association to add to Exhibit 2 the names of additional Counties choosing to settle and delete from Exhibit 3 the names of those Counties choosing to settle by filing such information in an addendum no later than September 16, 2012 at 5:00 p.m. (Eastern/Standard Time). 7. The Parties recognize that section 409.915(8), Florida Statutes, as amended by Section 12, provides for the payment of each county's Prior Unpaid Amount by the automatic deduction by the Department (over a sixty (60) month, or longer, time period) of each County's revenue sharing distribution. The Parties further recognize that the calculation and amount of each County's monthly deduction can be obtained from the Agency. As an accommodation to those Counties choosing THE SETTLEMENT OPTION that would like to avoid the automatic deduction of their revenue sharing distribution and that would like to make payments from a revenue source of their choosing, the Agency and Department agree that such Counties shall make periodic advance payments (in monthly, quarterly or greater increments or to be specified at the time the county enters into a payment plan with the Agency) to the Agency on or before October 5th by 11:59 p.m., (Eastern/Standard Time) and on or before the fifth day of each month thereafter by 11:59 p.m. (Eastern/Standard Time) from a revenue source of the County's choosing (unless an advance payment has already been submitted for that month). Once the Agency enters into a payment plan with a county, the Agency shall notify the Department of the details of the payment plan. If the incremental payment is not received by 11:59 p.m. of the date payment is required, the Agency shall notify the Department and the Department shall deduct that month's payment from that County's revenue sharing distribution. As set forth in paragraph 8 below, it is further agreed that a county's ability to continue to make the advance Page 10 of 15 Payments provided in this paragraph shall be lost if the county fails to make a timely advance payment to the agency. 8. The Parties agree that if a County's incremental payment is not timely received by the Agency pursuant to paragraph 7, supra, that such County shall be in material and irreparable breach of this Agreement. As a consequence of that breach the Agency shall, within two (2) business days, amend its prior certification to the Department pursuant to section 409.915 (7), Florida Statutes, to include all amounts remaining unpaid by that County at the time of the breach. The Department shall act upon the Agency's amended certification in accordance with section 409.915 (8), Florida Statutes, by thereafter reducing the breaching County's distributions pursuant to that subsection, prospectively, from the time of the Agency's amended certification. The Counties hereby waive their right to administratively challenge the Agency's determination as to whether a payment has been timely received pursuant to this paragraph and paragraph 7, supra. 9. The Agency agrees to include the provisions of Composite Exhibit 4 in its proposed rules and further to move forward and work with the Counties and the Association in good faith with the proposed rules that are presently being considered for adoption. The Parties acknowledge that the Agency's draft rule attached hereto as Composite Exhibit 4 is presently in the administrative rulemaking process pursuant to Section 120.54, Florida Statutes, and that the draft rule will not become final until that process, including any administrative challenges that may be brought under Chapter 120, Florida Statutes, is successfully completed. The Parties agree that, should the rule or any other aspect of this settlement be successfully Page 11 of 15 challenged under Chapter 120, Florida Statutes, and be ruled invalid, it shall not constitute a breach by the Agency of this agreement or of any order entered that adopts this agreement. 10. The Parties agree that if any provision of this agreement is ruled by a judicial or administrative tribunal to be illegal, unenforceable, or void, then the Parties shall be relieved of their respective obligations arising under such provision, and the validity of the remainder of the agreement shall not be affected. 11. The Parties agree that in the interest of fairness the SETTLEMENT OPTION set forth in paragraph 3 above shall also be available to Counties that have not joined as Plaintiffs in this action, (the "Non -Plaintiff Counties") where any such County provides to the Agency by email and U.S. Mail to the Agency's General Counsel (with a copy to the Association), which is emailed and postmarked no later than September 12, 2012, a notice and waiver of such Counties' ability to pursue an action in Circuit Court challenging HB 5301 on the basis of an alleged violation of the unfunded mandate provisions of Art. VH, Sec. 18, Florida Constitution in substantially the form of the notice and waiver attached hereto as Exhibit 5. The Association shall provide a copy by email of this Stipulation to the County Attorney of all Non -Plaintiff Counties. 12. The Agency is willing to accept a tentative notice of acceptance of the settlement option (the "Tentative Notice of Acceptance") from those counties (both Plaintiff Counties and Non -Plaintiff Counties) that have not had an opportunity to make a formal determination of which option to accept. The Tentative Notice of Acceptance must be provided by the Chairman of the Board of County Commissioners or a member of such County's Senior Staff. The Tentative Notice of Acceptance must be accompanied by evidence that the Board of County Page 12 of 15 Commissioners will be formally considering the County's options no later than October 12, 2012, at 11:59 p.m. (Eastern/Standard Time) and shall be substantially the form attached hereto as Exhibit 1. Notice of the subsequent formal action of the Board of County Commissioners approving the settlement option ("Notice of Approval") must be provided by sending a scanned copy of a signed and verified Stipulation as provided in Exhibit 6 by email and U.S. Mail to the Agency's General Counsel (with a copy to the Association) and to the Department's Office of General Counsel no later than October 13, 2012 at 5:00 p.m. (Eastern/Standard Time). If a properly executed Notice of Approval which evidences that County's formal approval of the settlement option is not timely received by the Agency pursuant to this paragraph, that event shall constitute a material and irreparable breach of this Agreement As a consequence of that breach the Agency shall, within two (2) business days, amend its prior certification to the Department pursuant to section 409.915 (7), Florida Statutes, to include all amounts remaining unpaid by that County at the time of the breach. The Department shall act upon the Agency's amended certification in accordance with section 409.915 (8), Florida Statutes, by thereafter reducing the breaching County's distributions pursuant to that subsection, prospectively, from the time of the Agency's amended certification. The Counties hereby waive their right to administratively challenge the Agency's determination as to whether a payment has been timely received pursuant to this paragraph 13. The Parties hereby agree that the signing of this Stipulation by any of them does not constitute an admission of any liability or wrongdoing whatsoever. Rather, the Parties have entered into this Stipulation in a desire to amicably compromise their differences and avoid Protracted litigation, by dismissal and abatement Page 13 of 15 14. This Stipulation shall not be construed against any one party, but shall be construed as if it were prepared jointly by all of them, and any uncertainty or ambiguity, or both, shall not be interpreted against any party. 15. The Parties agree that each shall pay their own attorney's fees and costs incurred in connection with this litigation. DATED this day of September, 2012. /s/ Susan H. Churuti Fla. Bar No. 284076 Thomas B. Drage, Jr. Fla. Bar No.173070 Bryant Miller Olive, P.A. One Tampa City Center, Suite 2700 Tampa, FL 33602 (813)273-6677 (813) 223-2705 (fax) schuruti@bmolaw.com and Virginia Saunders Delegal Fla. Bar No. 989932 General Counsel Florida Association of Counties 100 S. Monroe Street Tallahassee, FL 32301 (850) 922-4300 (850) 48&7192 (fax) gdelegal@fl-Counties.com /s/ Stuart Williams, General Counsel Bill Roberts, Deputy General Counsel /s/ Joseph C. Mellichamp, III Timothy E. Dennis Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau PL-01, The Capitol Tallahassee, Florida 32399-1050 Facsimile: 850-48&5865 Page 14 of 15 State of Florida, Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Facsimile: 850-921-0158 Page 15 of 15 EXHIBIT 1 Stuart Williams, Esquire General Counsel State of Florida Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Email: stuart.williams@ahca.myflorida.com Re: Tentative Notice of Acceptance Dear Mr. Williams & Mr. Mellichamp: . 2012 Joseph C. Mellichamp, III, Esquire Chief Assistant Attorney General Florida Office of the Attorney General Revenue Litigation Bureau 400 S. Monroe Street, li PL-01 Tallahassee, Florida 32399 Email: joe.mellichamp@myfloridalegaLcom The purpose of this letter is to advise the Agency for Healthcare Administration (the "Agency") and the Florida Department of Revenue (the "Department") that L_] County (the "County") intends to provide Tentative Notice of Acceptance that the County has elected to accept the Settlement Option as provided in paragraph 3 of Stipulation Providing for Dismissal of Some Parties and Abatement of Case for Remaining Parties (the "Stipulation") entered into in the case of Alachua County; et al. vs. Elizabeth Dudek, et al., Case No. 2012-CA-1328 in the Circuit Court for the Second Judicial Circuit in and for Leon County, Florida (the "Lawsuit"). Although, the County intends to settle the Lawsuit, the Board of County Commissioners has not had the opportunity to formally consider the matter. Please accept this as the ss nty's Tentative Notice of Acceptance of the Settlement Option. Attached I have provided evidence indicating that the County will formally consider the Settlement Option no latter than October 12, 2012 at 11:59 p.m. (Eastern/Standard Time). [Senior Staff/County Administrator/ Manager/Deputy County Administrator/ County Attorney] cc: Ginger Delegal, General Counsel Florida Association of Counties I A -- EXHIBIT 2 List of Counties oosing the Settlement Oation: EXHIBIT 2 E- List of Counties Choosing to Abate: EXHIBIT 3 COMPOSITE EXHIBIT 4 Notice of Change/Withdrawal AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid RULE NO.: RULE TITLE: 59G-1.025. Medicaid County Billing NOTICE OF CHANGE Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 38 No. 26, June 29, 2012 issue of the Florida Administrative Weekly. The following changes have been made to the proposed rule. THE FULL TEXT OF THE PROPOSED RULE IS: 59G-1.025 Medicaid County Billing. (1) Retrospective Bills. This paragraph applies to the certification of county billings from November 1, 2001, through April 30, 2012, that remain unpaid, as provided in section 409.915(7), F.S. (a) By August 1, 2012, the Agency will certify to each county the amount that is unpaid for retrospective bills. (b) By September 1, 2012, a rnunty may contest the amount certified by filing a petition, under the aRplicable REodg i s f chapter 12 . This rocedure is the exclusive method to shall the ount cerdfie . (c) September 13, 2012, 5:00 p.m. Eastern &&� Time, each county may make total or Partial payment in the form of a check or wire transfer to the Agency of the amount certified by the Agency pursuant to subsection (1)(a). (d) By September 15, 2012, the Agency will certify to the Department of Revenue: Page 1 of 7 COMPOSITE EXHIBIT 4 1.100 percent of the amount provided in subsection (1)(a) minus amounts credited to the counties and/or amounts paid and received by the Agency pursuant to subsection (1)(c) for each county that challenges the certified amount by filing a petition pursuant to subsection (1)(b) by i 2012 2.85 percent of the amount provided in subsection (1)(a) minus amounts credited to the counties and/or paid and received by the � pursuant to section (1)(c) for each county that does not challenge the certified amount by filing a petition pursuant to subsection (1 jw naaetn_ m'se.. 1 •'!A1 •1 r (2) Prospective Bills. This paragraph applies to the monthly amount of each county's contribution to Medicaid as required in section 409.915, F.S. The monthly bills will be rendered to the counties no later than the second business day A the month (a) Certification 1. For all certifications prior to June 1, 2013, the Agency will certify to the Department of Revenue by the 7f day of each month the amount of the monthly bill rendered one month prior less any amounts as provided in subsections (2)(b) and (2)(c). 2. For the June, 2013 certification, the Agency will certify to the Department of Revenue the amount of the monthly bills rendered in May, 2013 and June, 2013 less any amounts credited to a county M=ant to subsection 3. Beginning July 1, 2013, the Agency will certify to the Department of Revenue by the 7h day of each month the amount of the monthly bill rendered that month less any amounts as Provided in subsection (2)(b). COMPOSITE EXHIBIT 4 Page 2 of 7 4. If the 71h day of the month falls on a weekend or holiday, certification will be completed on the first business day following the 7h day of the month. S. If the Department of Revenue determines there are insufficient funds to pay a county's monthly certified amount, the Department will notify the Agency of the amount still owed, and the Agency will send an invoice to the affected county within two months of receiving the Department's notice. The county shall pay the invoice within 60 days of receipt. The balance on any invoice that remains unpaid after 60 days will be re -certified to the Department of Revenue in subsequent months until paid in full. (b) Payments Each county may choose to submit payment in the form of a check or wire transfer to the Agency. Such payment must be received by 5:00 pm. Eastern Stwdawd Time two business days prior to the date of certification. (c) Refund Requests 1. Advanced -Refund Request a. No later than the last business day of each billing month, each county may request an advanced refund request through the county billing portal for those claims on the same monthly billing that the county disputes. If the request is less than or equal to the amount of the coun�tv's highest_ monthly dispute rate reasenable, the Agency will stay certification of the amount requested in the her -the advanced refund request. b. Refund requests resulting in certification amounts stayed will be researched within 60 days by the Agency. Page 3 of 7 COMPOSITE EXHIBIT 4 I. Denied refund requests will be certified to the county on a subsequent bill no later than 45 days from the completion of Age research. M Bills for which a refund request is granted on the basis that the bill should have been submitted to a different county will be transferred and certified to the appropriate county on a subsequent bill no later than 45 days from the completion of Agency research. c. A county does not waive any right to paragraph (c)2., Back End Refund Request, by making an advanced refund request. d. Except for sue -paragraph 1.b, , subsection PaFagfaPh 1. shall expire on April 30, 2013. 2. Back End Refund Request a. Each county may request a back end refund request noNe later than 60 days from the date of certification of the monthly bill for which the back end refund request is beingLeeVested the b. Back end refund requests must be in writing and must include the reason and documentation for the request; c. Within 260 days ef-feeeipt of the certification Fe c es , the Agency will notify the county whether the request is granted, either in part or in whole. If any portion of the request is denied, the agency will provide information as to the reasons for the denial. If any portion of the refund request is granted, the refund will be in the form of a credit notification to the Department of Revenue, or a credit applied to a subsequent bill, within 60 days of the Agency's decision. Approved refunds that should have been billed to a different county, will be Page 4of7 COMPOSITE EXHIBIT 4 transferred to the appropriate county on a subsequent bill._within 60 da�►s of the Agues decision. (d) Receipts 1. The Agency will provide each county a monthly receipt of amounts billed, amounts paid and amounts certified to the Department of Revenue. 2. The Agency will provide each county a monthly receipt of action taken on Advance Refund Requests. Actions taken include: a. ARR Denied — Advance Refund Request Denied and the claim will appear on a subsequent bill with a status of ARR Denied; b. ARR Transferred Out — Advance Refund Request Transferred Out and the claim will be transferred to a different county than the county requesting Advanced Refund; Rulemaking Authority 409.919 FS. Law Implemented 409.915 FS. History —New Page 5 of 7 COMPOSITE EXMIT 4 Notice of Change/Withdrawal AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid RULE NO.: RULE TPTLE: 59 1.020: Definition of County of Residence NOTICE OF CHANGE Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 38 No. 26, June 29, 2012 issue of the Florida Administrative Weekly. The following changes have been made to the proposed rule. THE FULL TEXT OF THE PROPOSED RULE IS: 59G-1.020 Definition of County of Residence. For the purpose of county financial participation in the Medicaid Program, the county of residence for inpatient hospital care and nursing home care is determined by the recipient's address information contained in the federally approved Medicaid eligibility system. (1) For hospital claims, whether through fee -for -service or managed care, the address is based on the current living or residential address, with the exception of when the resident lives in a nursing home. When apt recipient 4wfividtW lives in a nursing home, the address is based on the prior address. (2) For nursing home claims, whether through fee -for -service or managed care, the address is based on the prior address, except when aR-=i Tent �} is admitted to a nursing home directly from a place of residence outside of the State of Florida. If there ' ient }adi-.4duid is admitted to a nursing home from another state, the nursing home address will be used for county billing purposes. Page 6 of 7 COMPOSITE EXHIBIT 4 (3) Since address information for children in custody of the Department of Children and Families is unavailable, counties are not responsible for these payments. laeate& deeisiffin. its flat Rulemaking Authority 409.919 FS. Law Implemented 409.915 FS. History —New 1-1-77, Formerly 1OC-7.31,1OC-7.031, Amended Page 7 of 7 COMPOSITE EXHIBIT 4 EXHIBITS Stuart Williams, Esquire General Counsel State of Florida Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Email: stuart.williams®ahca.myflorida.com . 2012 Joseph C. Mellichamp, III, Esquire Chief Assistant Attorney General Florida Office of the Attorney General Revenue Litigation Bureau 400 S. Monroe Street, # PL-01 Tallahassee, Florida 32399 Email: joe-mellichamp@myfloridalegal.com Re: Notification and Waiver by Non -Plaintiff County Dear Mr. Williams & Mr. Mellichamp: The purpose of this letter is to provide notification to the Agency for Healthcare Administration (the "Agency") and the Florida Department of Revenue (the "Department") that [—_ ] County (the "County") intends to take advantage of those provisions available to a non -plaintiff county" as set forth in paragraphs 3, 7 and 10 of that Stipulation Providing for Dismissal of Some Parties and Abatement of Case for Remaining Parties (the "Stipulation") entered into in the case of Alachua County; et al. vs. Elizabeth Dudek, et al., Case No. 2012-CA-1328 in the Circuit Court for the Second Judicial Circuit in and for Leon County, Florida (the "Lawsuit"). As you may know the County did not join in the Lawsuit and has not otherwise filed a challenge to that certain legislation (i.e., HB 5301) which was passed in the 2012 Legislative Session and signed into law by the Governor on March 29, 2012. The County's Board of County Commissioners has authorized me [as Chairman of the Board of County Commissioners or County Administrator/Manager or County Attorney] to provide this notification and to provide a limited waiver of the right of the County individually or in concert with others to make a Circuit Court challenge of HB 5301 on the basis of an alleged violation of the Unfunded Mandate Provision of Art. VII, Sec. 18, Florida Constitution. This notification and waiver is not in any way deemed to affect the ability of the County to challenge the amount of prior unpaid Medicaid billings in a Chapter 120 proceeding (as provided by existing law). Further, the County is not waiving the ability to assert in such 120 challenge or a subsequent Circuit Court Challenge any defenses which it might have, including defenses related to the statute of limitations, laches and equitable estoppel. cc: Ginger Delegal, General Counsel Florida Association of Counties EXHIBIT 5 EXHIBIT 6 Stuart Williams, Esquire General Counsel State of Florida Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Email: stuartwilliams@ahca.myflorida.com Re: Verified Stipulation Dear Mr. Williams & Mr. Mellichamp: 2012 Joseph C. Mellichamp, III, Esquire Chief Assistant Attorney General Florida Office of the Attorney General Revenue Litigation Bureau 400 S. Monroe Street, # PL-01 Tallahassee, Florida 32399 Email: jOe.mellichamp@myIloridalegal.com The purpose of this letter is to verify that [ _� County (the "County") has elected to take the Settlement Option provided in paragraph 3 of the Stipulation Providing for Dismissal of Same Parties and Abatement of Case for Remaining Parties filed in Alachua County, Florida et al v. Elizabeth Dudek et al; Case No.: 2012-CA-1328 in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. The County's election to take this option was made by [Resolution, Motion or Delegation to the County Attorney]. [If by Resolution or Motion, attach verified copies to letter, if possible.] [11 by Delegation to County Attorney, indicate that the Board of County Commissioners has provided parameters for settlement of this case and has authorized the undersigned is settle on behalf of the County.] cc: Ginger Delegal, General Counsel Florida Association of Counties EXHIBIT 6