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Agenda 09/13/2011 Item #10F9/13/2011 Item 10 F. COLLIER COUNTY Board of County Commissioners Item Number: 10.F. Item Summary: Recommendation to direct the County Attorney to;submit an appeal in response to a request from the Florida Department of Education, Food and Nutrition Management Section (FNMS) to reclaim 25,652 meals for program year 2009 and $1,582 meals for program year 2010 associated with the Summer Food Program. (Marla Ramsey, Public Services Administrator) Meeting Date: 9/13/2011 Prepared By Name: NelsonTona Title: Administrative Assistant, SeniorParks & Recreation 9/7/2011 12:19:54 PM Submitted by Title: Administrative Assistant, Senior,Parks & Recreation Name: NelsonTona 91'712011 12:19:56 PM Approved By Name: WilliamsBarry Title: Director - Parks & Recreation,Parks & Recreation Date: 9/7/2011 1 :33:10 PM Name: AlonsoHailey Title: Administrative Assistant,Domestic Animal Services Date: 9/7/20112:00:00 PM Name: RamseyMarla Title: Administrator, Public Services Date: 9/7/20112:13:41 PM �\ Name: GreeneColleen Title: Assistant County Attorney,County Attorney Packet Page -1203- 9/13/2411 Item 10.F. Date: 9/7/20112:43:17 PM Name: KlatzkowJeff Title: County Attorney, Date: 9/7/20112:56 :19 PM Name: PryorCheryl ' Title: Management/ Budget Analyst, Senior,O#'fice of Management & Budget Date: 9/7/20113:10:07 PM Name: OchsLeo Title: County Manager Date: 9/7/20114:08:20 PM 9/13/2011 Item 10'.F. EXECUTIVE SUMMARY Recommendation to direct the County Attorney to submit an appeal in response to a request from the Florida Department of Education, Food and Nutrition Management Section (FNMS) to reclaim 25,652 meals for program year 2009 and 31,582 meals for program year 2010 associated with the Summer Food Program. Immediate Fiscal Impact is $300.00. OBJECTIVE: To ensure that funds associated with provision of the summer food program are collected in accordance with the agreement between the Board of County Commissioners and the Florida Department of Education, FNMS. - CQNSIDERATI ©N: The Board of County Commissioners and Collier County School Board District have a Memorandum of Understanding for the provision of a nutritious food program for low income individuals during the summer. This agreement is attached and outlines the responsibilities of each party. On August 16, 2011, .documentation was received from the Florida Department of Education disallowing a total of 25,652 meals for program year 2009 (June to August, 2009) and 31,582 for program year 2010 (June to August 2010), requesting reimbursement of $101,324.79, and rejecting the Collier County Parks and Recreation Department's appeal of the determination. In summary, the FNMS, upon review of these program years; determined that there were not adequate receipts for milk purchases that corresponded with the total number of meals served and claimed for reimbursement for this time period. A review of the program was conducted for these two program years by Parks and Recreation staff and Human Resources to determine why this discrepancy existed. It was determined that the program staff employed by the summer food program did provide the required milks associated with the meals; however, in these two program years, if the milks were unused and left over, staff may have collected, refrigerated and provided for the next meal service rather than ordering additional milks. In addition, at the start up of the program during 2009 and 2010, program staff has indicated that milks left over from the regular school year were provided to the summer food program by the Collier. County School District to assist with the program's initial provision of meals which were not invoiced. The state rejected program staffs common sense approach to not let unused milk go to waste. The Collier County Parks and Recreation Department has maintained this program for approximately 30 years and has records that demonstrate that the meals requested for reimbursement were provided during 2009 and 2010. FISCAL. IMPACT: There is a filing fee associated with the District Court of Appeal in the amount of $3W'00 associated with this action, which will come from the General Fund (001) within a Parks and Recreation Department. Packet Page -1205- 1/0�- 9/13/2011 Item 101. LEGAL CONSIDERATION: Staff handled the administrative appeal of the Florida Department of Education's Final Determination that Collier County's Park and Recreation Department needed to repay $101,324.79 for operations of the 2009 and 2010 Summer Food Service Program. The administrative appeals process, defined by Federal law, is now done. The remaining remedy is an appeal to the District Court of Appeal, which will utilize the record before the administrative hearing officer. The County Attorney's Office has not seen this record. There is a significant time constraint involved, as any appeal must be filed no later than 30 days from the final administrative determination (August 16, 2011). Accordingly, it is the County Attorney's recommendation that the Board authorize the filing of an appeal, and the taking of all actions in furtherance thereof. Following the filing of the appeal, we will review both the record and the law, and determine whether there are sufficient grounds to continue the appeal. -JAK GROWTH MANAGEMENT IMPACT: There is no Growth Management Plan implication with this item. RECOMMENDATION: That the Board of County Commissioners provides direction to the County Attorney to take all steps necessary to appeal the August 16, 2011 Florida Department of Education's Final Determination that Collier County's Park and Recreation Department needed to repay $101,324.79 for operations of the 2009 and 2010 Summer Food Service Program. Prepared by: Barry Williams, Director, Parks and Recreation Department Packet Page -1206- 9/13/2011 Item 10.F. �• FLORIDA DEPARTMENT OF EDUCATION Ar ewe • STATE BOARD of EDUCATION John L. 113nn KATHLEEN SHANAHAN Chair Commissioner of Education ROBERTO MARTNTZ, Vice Chair i Members just "ad, � GARY CHARTRANDFIQI'dQAl i DR. AKSHAY DESAI RARBARA S FEINCOLD - a 1 JOHN B. PADGR'T PD ,U( July 28, 2011 i Barry Williams, Parks and Recreation Director Collier County Parks and Recreation ( #04 -0804) 15000 Livingston Road Naples, FL 34109 Subject: United States Department of Agriculture Summer Food Service Program j Mr. Jim Thomas n Collier County Parks and Recreation ( #04- 0804) j Dear Mr. Williams: The purpose of this letter is to inform you that the Florida Department of Education, Food and Nutrition Management Section, has received a complaint against the Collier County Parks and Recreation and Jim Thomas in regards to the operation of the 2010 Summer Food Service Program (SFSP). The complaint alleged that the sponsor has been filing fraudulent claims for reimbursement in an effort to receive additional funding from the SFSP program. During the investigative process to determine the validity of the complaint, we expanded the review to include the 2009 SFSP. A review of the documentation provided for the 2009 and 2010 SFSP resulted in the following findings: { • 2009 • An overclaim of 31,582 meals due to the shortage of milk purchased. • The unallowable cost of $9,359.18 due to the purchase of ice cream, pudding, and gelatin. • 2010 • An overclaim of 25,652 meals due to the shortage of milk purchased. • The unallowable cost of $24,042.99 due to the purchase of ice cream, pudding, and brownies. As a result of the review, a reclaim of 57,234 incomplete breakfast meals in the amount of $101,324.79 for the 2009 and 2010 SFSP is required, and we have determined that Collier County Parks and Recreation is ' seriously deficient in its operation of the SFSP. In addition, we have identified Jim Thomas as responsible for the serious deficiencies as he has responsibility for the overall management of Collier County Parks and { Recreation's operation of the SFSP. i FOOD AND NUTRITION MANAGEMENT SECTION 325 W. G--iINES STREET • SUITE I O24 - T.-\L.LAIiAsSEE. FL(:)RMA 323994A00 • ( 850) 245 -5(k44 • F.�- %(850) 245 -7855 ��r.�Rt.fldoe.or_ Packet Page -1207- a Mr. Barry Williams, Collier County Parks and Recreation ( #04 -0804) July 27, 2011 Page 2 The corrective action plan required by Collier County Parks and Recreation is as follows: • Provide repayment of the meals identified by submitting revised claims. • Secure a replacement for Jim Thomas in the administration of the program. • Provide documentation, if applicable, to justify meals served without milk. 9/13/2011 Item 101. • Provide an explanation of how unallowable food items were used. j • Provide corrective actions that will ensure the findings identified will not occur in the future. { I a The corrective action plan must be received by our office within seven calendar days from receipt of this letter. If Collier County Parks and Recreation does not fully and permanently correct all of the serious deficiencies and submit documentation of the corrective action plan by the due date, we will: i • Propose to terminate the Collier County Parks and Recreation agreement to participate in the SFSP. f • Propose to disqualify Collier County Parks and Recreation from future SFSP participation. i • Propose to disqualilfy Jim Thomas from future SFSP participation. In addition, if Collier County Parks and Recreation voluntarily terminates its agreement after receiving this letter, we will propose to disqualify Collier County Parks and Recreation and Jim Thomas from future SFSP participation. If disqualified, Collier County Parks and Recreation and Jim Thomas will be placed on the Florida SFSP Disqualified List. While on the list, Collier County Parks and Recreation will not be able to participate in the SFSP. Jim Thomas will not be able to serve as a principal in any institution or provider operating the SFSP. You may appeal our determination of the overclaim. A copy of the appeal procedure that identifies timelines, rights, and responsibilities by which an appeal may be filed is enclosed. The written request for appeal must be received and acknowledged in our office within seven calendar days from receipt of this letter. If you have questions related to this letter, please contact Debra Stecldein, Program Services Director, at (800) 504 -6609. Sincerely, Debra Stecklein, Program Services Director Food and Nutrition Management DS /mr cc: Michelle Morris, Program Manager, DOE Lisa Church, Program Reviews Supervisor, DOE Suzanne Tart, Program Operations Director, DOE Jim Thomas, Athletic Supervisor Packet Page -1208- 13 n 0 Florida Department of Education Food and Nutrition Management Summer Food Service Program for Children Sec. 225.13 Appeal Procedures General 9/13/2011 Item 101. Each state agency shall establish a procedure to be followed by an applicant appealing: 1. A denial of an application for participation; 2. A denial of a sponsor's request for an advance payment; 3. A denial of a sponsor's claim for reimbursement [except for late submission under Sec. 225.9(d)(5)]; 4. A state agency's refusal to forward to FNS an exception request by the sponsor for payment of a late claim or a request for an upward adjustment to a claim; 5. A claim against a sponsor for remittance of a payment; 6. The termination of the sponsor or a site; 7. A denial of a sponsor's application for a site; 8. A denial of a food service management Company's application for registration, if applicable; 9. Or the revocation of a food service management company's registration, if applicable. Appeals shall not be allowed on decisions made by FNS with respect to late claims or upward adjustments under Sec. 225.9(d)(5). Provisions At a minimum, appeal procedures shall provide that: 1. The sponsor or food service management company will be advised in writing of the grounds upon which the state agency based the action. The notice of action, which shall be sent by certified mail, return receipt requested, shall also notify that the sponsor or food service management company has the right to appeal the state's action; 2. The sponsor or food service management company will be advised in writing that the appeal must be made within a specified time and must meet the requirements of paragraph 4 of this section. The state agency shall establish this period of time at not less than one week nor more than two weeks from the date on which the notice of action is received; 3. The appellant be allowed the opportunity to review any information upon which the action was based; SFSP -A9 Packet Page -1209- ly • 9/13/2011 Item 10. F. Appeal Procedures Page 2 { 4. The appellant is allowed to refute the charges contained in the notice of action either in i person or by filing written documentation with the review official. To be considered, written documentation must be submitted by the appellant within seven days of submitting the appeal, must clearly identify the state agency action being appealed, and must include a photocopy of the notice of action issued by the state agency; 5. A hearing will be held by the review official in addition to, or in lieu of, a review of written information submitted by the appellant only if the appellant so specifies in the letter appealing the action. The appellant may retain legal counsel or may be represented by another person. Failure of the appellant's representative to appear at a scheduled hearing shall constitute the appellant's waiver of the right to a personal appearance before the review official, unless the review official agrees to reschedule the hearing. A representative of the state agency shall be allowed to attend the hearing to respond to the appellant's testimony and written information, and to answer questions from the review + official; 6. If the appellant has requested a hearing, the appellant and the state agency shall be provided with at least five (5) days advance written notice, sent by certified mail, return receipt requested, of the time and place of the hearing; 7. The hearing be held within 14 days of the daze of the receipt of the request for review, but, where applicable, not before the appellant's written documentation is received in accordance with paragraphs 4 and 5 of this section; S. The review official will be independent of the original decision - making process. The denied applicant should submit the request for review to the: Florida Department of Education ATTN: Hearing Official, Food & Nutrition Management 1224 Turiington Building 325 West Gaines Street Tallahassee, Florida 32399 9. The review official makes a determination based on information provided by the state agency and the appellant, and on program regulations; 10. Within five (5) working days after the appellant's hearing, or within five (5) working days after receipt of written documentation if no hearing is held, the reviewing official will make a determination based on a full review of the administrative record and inform the appellant of the determination of the review by certified mail,. return receipt requested; SFSP -A9 Packet Page -1210- 1 • 9/13/2011 Item 10.17. Appeal Procedures Page 3 11. The state agency's actions remain in effect during the appeal process. However, participating sponsors and sites may continue to operate the program during an appeal of termination, and if the appeal results in overturning the state agency's decision, reimbursement shall be paid for meals served': during the appeal process. However, such continued program operation shall not be allowed if the state agency's action is based on imminent dangers to the health or welfare of children. If the sponsor or site has been terminated for this reason, the state agency shall so specify in its notice of action; and 12. The determination by the state review official:, is the final administrative determination to be afforded to the appellant. The state agency shall send written notification of the complete appeal procedures and of the actions which are appealable, as specified in paragraph (a) of this section, to each potential sponsor applying to participate and to each food service management company applying to register in accordance with Sec. 225.6(8). A record regarding each review shall be kept by the state agency, as required under Sec. 225.8(a). The record shall document the state agency's compliance with these regulations and shall include the basis for its decision. Dav Timelines 0 Notice of action received by appellant 7 (7 calendar days) Final date for appellant to make written request for review to state review official i 21 (14 calendar days) Final date for hearing .26 (5 working days) Final date for appellant to be informed of the determination of the hearing official i Note: Within above time frames: (1) Written documentation must be submitted by appellant within seven (7) calendar days of submitting the request for review; and (2) Appellant shall be provided at least five (5) ,calendar days advance notice of hearing. SFSP -A9 Packet Page -1211- j JEW > k Carolyn Horwich Administrative Hearing Officer Food and Nutrition Management Section Florida Department ofEducation August 16, 2011 Mr. Barry Williams Director Collier County parks and Recreation 15000 Livingston Road Naples, FL 34109 Re: Hearing Number. 1 IFNM008 (08/12/2011) Contract: 04 -0804 Dear Mr. Williams: 9/13/2011 Item 101. This letter provides the official Florida Department of Education's Final Determination regarding the Collier County Parks and Recreation Department's appeal of the reclaim of $101,324.79 for operations of the 2009 and 2010 Summer Food Service Program. This cause came before the undersigned as the result of an anonymous e-mail dated March 29, 2011, to the Florida Department of Education, Food and Nutrition Management Section (FNMS) alleging fraudulent activity by Collier County Parks and Recreation Department (Sponsor or Appellant). (P 1) The crux of the allegation was that the Sponsor filed fraudulent claims for reimbursement from the FNMS. In order to investigate the allegations lodged in the anonymous e-mail, the FNMS requested on April 5, 2011, from Jim Thomas, the then Director of the Sponsoes summer lunch program, documentation for the 2010 summer program at all 49 sites reflecting site inventories, production records and delivery slips, and all food and milk invoices, transfers, and donations. (P2) Upon review of the documents provided by the Sponsor to the FNMS, it was determined that an overclaim of 25,652 meals was made. The review by FNMS was then expanded to include 2009 summer lunch program documentation. In a letter dated May 5, 2011, the FNMS requested that Mr. Thomas provide the FNMS with copies of the same materials asked for in the April 5, 2011, letter, but for the 2009 summer program. (P9) Upon review of the documentation provided by the Sponsor to the FMNS, it was determined that an overclaim of 31,582 meals was made. By letter dated July 28, 2011, the FNMS informed Mr. Barry Williams, Collier County Parks and Recreation Director, that a reclaim of 57,234 incomplete breakfast ' "P" followed by a number reflects the page number from the sectioned booklets provided to all participants prior to the August 12, 2011, hearing. Packet Page -1212- n 9/13/2011 Item 10.F. meals was being made, and that the Sponsor would be responsible for returning $101,324.79 to the FNMS. The FNMS also enumerated corrective action steps that the Sponsor must take, as well as the Sponsor's right to appeal the overclaim determination. (P12 -13) The Sponsor timely filed an appeal of the overclaim determination and requested a hearing. (P18) The hearing was conducted Friday, August 12, 2011, in Room 1044-C, of the Turlington Building, located at 325 West Gaines Street, Tallahassee, Florida, 32399. Michelle Morris, Management Program Manager; Irene Wimbush, Hearing Coordinator, Deb Stecklein, Program Services Director; and, Mari Presley, Assistant General Counsel, appeared on behalf of the respondent, Food and Nutrition Management Section of the Florida Department of Education. In attendance on behalf of Collier County Parks and Recreation Department, were Barry Williams, Director of�Parks and Recreation; Marla Ramsey, Collier County Public Services Administrator, and, Kerry Runyon, Regional Manager for Parks and Recreation. The hearing was recorded by the Department but not transcribed. A sign -in sheet was maintained listing all present at the hearing. All records pertaining to this appeal are maintained by the Department in the Food and Nutrition Management Section. Testimony was given by each person in attendance. No facts are in dispute. Mr. Williams acknowledges that the Sponsor purchased 57,234 fewer milk units than unitized meals. Mr. Williams states that this was a result of staff restocking milks and reusing them for subsequent meals. Acting as good fiscal stewards and avoiding waste are the reasons Sponsor staff implemented these steps. (PA4)2 This practice has since been stopped. Ms. Ramsey stated that there is no documentation indicating that milks were not served with the meals. Ms. Ramsey also pointed out that the monitoring reports issued by FNMS staff were sparse in 2009, and that the reuse of milks could have been brought to the Sponsor's attention earlier. Deb Stecklein from the FNMS testified that meal counts are done by counting milk purchases. Milk, as opposed to other components of a unitized meal, is the most reliable way of counting meals. The use of milk counts to verify the number of unitized meals is referenced at FNMS's mandatory annual training sessions for all sponsors. Ms. Morris acknowledged that staffing shortages in 2009 could have resulted in monitoring reports that were less expansive than those in subsequent years when additional stall' were hired. Ms. Presley raised a procedural point, mentioning that the burden is on the Sponsor to prove accurate claims for meals that comply with federal and state laws and regulations. This issue is the core of the matter. Regardless of intent, the Sponsor's failure to comply with '7 C.F.R. § 225(16)(b), and Rules 64E -11.002 and 64E- 11.004, Fla. Admin. Code, resulted in inadequate documentation to prove meal count data. This was stated at the hearing and was not disputed by any participant. At the conclusion of the hearing, the undersigned reserved determination, not because any factual issues remained, but rather to ascertain whether there is any authority under federal law that allows negotiation or waiver of a reclaim on overpayment. There is not. Rather, the FNMS is prohibited from disregarding overpayment in virtually every case. 7 C.F.R. § 225.10(c) Further, if the FNMS does not collect an I "PA" followed by a number reflects the page member fiom the packet provided to all participants on August 12, 2011, or the day prior. 2 i Packet Page -1213- 9/13/2011 Item 10. F. overpayment, the U.S. Department of Agriculture, Food and Nutrition Service, can assert a claim against the Florida Department of Education, as the state agency within which the FNMS currently operates. 7 C.F.R. § 225.12(c) FINAL DETERMINATION The undersigned Hearing Officer is independent of the original decision - malting process that resulted in the adverse action being appealed. The Hearing Officer's determination, pursuant to 7 C.F.R. § 225.13, is the final administrative appeal afforded the Appellant. If the Appellant is adversely affected by this final determination, § 120.68, Fla. Stat., provides for judicial review. Such judicial review is governed by the Florida Rules of Appellate Procedure and includes filing a notice of appeal with the Agency Clerk of the Department of Education and a copy of the notice accompanied by a filing fee with the District Court of Appeal in the district where the Appellant is looted or the First District Court of Appeal. The notice of judicial review must be filed within 30 days of the date of this final administrative determination. After hearing testimony from the FNMS and Appellant, and upon review of all documents relevant to this case, it is the final determination of the undersigned Hearing Officer to reject the sponsor's appeal. A copy of this Final Order shall be forwarded to Appellant by USPS certified mail, return receipt requested. Carolyn HokWich Administrative Hearing Officer Food and Nutrition Management Section Florida Department of Education 325 West Gaines Street, Room 1024 Tallahassee, FL 32399 -0400 (800) 5046609 cc; FNM Program Director — Deb Stecklein FNM Program Manager — Michelle Morris FNM Hearing Coordinator — Irene Wimbush 3 Packet Page -1214- 9/13/2011 Item 105. MEMORANDUM OF AGREEMENT�� COLLIER COUNTY PARKS AND RECREATION DEPARTMENT SUMMER FOOD SERVICE PROGRAM The District School Board of Collier County (Schools), whose address is 5775 Osceola Trail, Naples, Florida 34109, agrees to furnish School cafeterias to the Collier County Parks and Recreation Department (Sponsor), whose address is 15000 Livingston Road, Naples, Florida 34109, for the purpose of preparing and delivering meals for summer park sites, summer school facilities, and any other programs eligible to participate in the Summer Food Service Program by the Sponsor. This agreement is with the understanding that current School Food Service personnel will be hired by the Sponsor to run and operate the facilities being used to produce meals for the summer food service program. It is understood that the Sponsor agrees to leave the kitchens clean, in good repair and ready for the next school year. Each meal will meet the specifications as set forth by the USDA Summer Food Program Regulations, 7 CFR, Part 225. Use of the cafeterias will begin on June 1 through the second week of August each year for five (5) years, 2009 through 2013. Program dates are subject to minor changes based upon future school calendars. Either party may cancel this agreement with sixty (60) days notice. All food and supplies will be sold to the Sponsor at the schools cost plus two percent (2 %) per case. The Schools shall prepare an invoice for all food and supplies received by the Sponsor at the end of each month. The Sponsor agrees to reimburse the Schools upon verification of the invoice and within thirty (30) days. IN WITNESS THEREOF: The parties hereto have caused this agreement to be executed by their duly authorized officers on the 23 day of June, 2009. BOARD OF COUNTY COMMISSIONERS Signature only. COLL COUNTY, FL RIDA ✓ ZWitness for School Boa BY: a �ao:q m� Donna Fiala, Chairman Witness for School Board s i gna�i�'`�,j01t t fix. Packet Page -1215- THE DISTRICT SCHOOL BOARD OF COLLIER COUNTY Approved as to form and Legal sufficiency: BY: Dr. Dennis L. Thompson Colleen Gr ene Superintendent ssistant oun Attorney T14 n Fish bane T trig T�'°e atl2 ouiisel y. ; j rd � c•,�lTjf�•• � ¢ICtC,��CNuf e s i gna�i�'`�,j01t t fix. Packet Page -1215-