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Backup Documents 10/09/2012 Item #16K 2ORIGINAL DOCUMENTS CHECKLIST & ROUTIN TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNA Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The coral documents are to be forwarded to the Board Office only after the Board has taken action on the item.) ROUTING SLIP Complete routing lines # I through #4 as appropriate for additional signatures, dates, and/or information needed. If the documc exception of the Chairman's signature, draw a line throu h routing lines # I through #4, complete the checklist, and forward to ,x,16 K 2 routing slip and original is already complete with the n Mitchell line #5). Route to Addressee(s) List in routing order Office Initials Date 1. appropriate. (Initial) Applicable) 2. 10/9/12 Agenda Item Number 16�K -2 3. signed by the Chairman, with the exception of most letters, must be reviewed and signed 4. Jeffrey A. Klatzkow, County Attorney County Attorney JAK 10/9/12 5. Ian Mitchell, Executive Manager BCC Board of County Commissioners Documents Attached 1011oIM 6. Minutes and Records Clerk of Court's Office AV\ (00 �(2 PRIMARY CONTACT INFORMATION (The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive summary. Primary contact information is needed in the event one of the addressees above, including Ian Mitchell needs to contact staff for additional or missing information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the item. Name of Primary Staff Jeffrey A. Klatzkow, County Attorney Phone Number 252 -8400 Contact appropriate. (Initial) Applicable) Agenda Date Item was 10/9/12 Agenda Item Number 16�K -2 Approved by the BCC signed by the Chairman, with the exception of most letters, must be reviewed and signed Type of Document Resolution Acceptance of Settlement Number of Original One Attached I Agreement - Dudek Documents Attached INSTRUCTIONS & CHECKLIST I: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05 08- MGR - 00132/33 Initial the Yes column or mark "N /A" in the Not Applicable column, whichever is Yes N/A (Not appropriate. (Initial) Applicable) 1. Original document has been signed/initialed for legal sufficiency. (All documents to be JAK signed by the Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions, etc. signed by the County Attorney's Office and signature pages from contracts, agreements, etc. that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and possibly State Officials.) 2. All handwritten strike - through and revisions have been initialed by the County Attorney's JAK Office and all other parties except the BCC Chairman and the Clerk to the Board 3. The Chairman's signature line date has been entered as the date of BCC approval of the JAK document or the final negotiated contract date whichever is applicable. 4. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's JAk signature and initials are required. 5. In most cases (some contracts are an exception), the original document and this routing slip JAK should be provided to Ian Mitchell in the BCC office within 24 hours of BCC approval. Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of your deadlines! 6. The document was approved by the BCC on 10/9/12 and all changes made during the JAIL meeting have been incorporated in the attached document. The County Attorney's Office has reviewed the changes, if applicable. I: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05 08- MGR - 00132/33 16KZ MEMORANDUM Date: October 10, 2012 To: Jeff Klatzkow, County Attorney County Attorney's Office From: Ann Jennejohn, Deputy Clerk Board Minutes & Records Department Re: Resolution 2012 -186: Accepting a Medicaid Settlement Option in the Amended Stipulation for Case No. 2012 -CA -1328: Alachua County, Florida et al v. Elizabeth Dudek, et al; filed in the Second Judicial Circuit Court, Leon County, Florida and related to litigation challenging the Constitutionality of Chapter 2012 -33, Laws of Florida (HB 5301) Attached for your records is a copy of the document referenced above, (Item #16K2), adopted by the Board of County Commissioners on Tuesday, October 9, 2012. The original will be held in the Minutes and Records Department for the Board's Official Record. If you have any questions, please contact me at 252 -8406. Thank you. Attachment 16K2 RESOLUTION NO. 2012 -1 R 6 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, CONFIRMING ITS ACCEPTANCE OF THE SETTLEMENT OPTION SET FORTH IN PARAGRAPH 3 OF THE AMENDED STIPULATION PROVIDING FOR DISMISSAL OF SOME PARTIES AND ABATEMENT OF CASE FOR REMAINING PARTIES FILED IN ALACHUA COUNTY, FLORIDA, ET AL. Y. ELIZABETH DUDEK, ET AL.; CASE NO.: 2012 -CA -1328, SECOND JUDICIAL CIRCUIT, LEON COUNTY, FLORIDA. WHEREAS, since 1972, the State of Florida has utilized billing and payment mechanisms to charge its counties a percentage of the costs for certain services provided to county residents through Florida's Medicaid Program; and WHEREAS, inaccuracies attributed to an electronic billing system implemented by the Agency for Health Care Administration have caused a backlog in billings resulting in a shortfall in the State's General Revenue Fund; and WHEREAS, in 2012, the Florida Legislature passed and the Governor signed HB 5301 (now Chapter 2012 -33, Laws of Florida) to collect past disputed bills through an automatic garnishment of the county revenue sharing and half -cent sales tax distributions; and WHEREAS, Collier County, through its Board of County Commissioners (Board), joined numerous fellow counties and the Florida Association of Counties as a plaintiff in litigation challenging the constitutionality of Chapter 2012 -33, Laws of Florida; and WHEREAS, on July 24, 2012, during a public hearing, the Board accepted Staff's recommendation to elect not to dispute the State's certified amount of Collier County's unpaid Medicaid backlog; accept a 15% reduction of this certified amount; make an early payment toward the backlog amount in FY 2012; and spread the remaining balance over the next five (5) fiscal years; and WHEREAS, this election is formalized as "The Settlement Option" in an Amended Stipulation signed by Counsel for the Plaintiffs and the State dated September 20, 2012; and WHEREAS, the Amended Stipulation requires formal acceptance by the Board of County Commissioners; and WHEREAS, the Board has formally considered the Amended Stipulation Providing for Dismissal of Some Parties and Abatement of Case for Remaining Parties and desires to withdraw from this litigation pursuant to the Settlement Option set forth in Paragraph 3 therein. 16K2 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that it has elected to take the Settlement Option provided in Paragraph 3 of the Amended Stipulation Providing for Dismissal of Some 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, Second Judicial Circuit, Leon County, Florida, a copy of which is attached hereto and made a part hereof. THIS RESOLUTION ADOPTED after motion, second and majority vote favoring same, this 91h day of October, 2012. ATTEST: DWIErYff t�.,d3ROCK, CLERK •r gy; G �puty_Qrk 2 BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA B C'J' y: FRED W. COYLE, CHAIRMAN 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.: 201.2 -CA -1328 16K2 AMENDED STIPULATION PROVIDING FOR DISMISSAL OF SOME PARTIES AND ABATEMENT OF CASE FOR REMAINING PARTIES This Amended 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; CHARLOTTE COUNTY, FLORIDA; CITRUS COUNTY, FLORIDA; CLAY COUNTY, FLORIDA; COLLIER COUNTY, FLORIDA; DIXIE 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; HILLSBOROUGH COUNTY, FLORIDA; INDIAN RIVER Page 1. of 15 16K2 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; PINELL.AS COUNTY, FLORIDA; POLK COUNTY, FLORIDA; PUTNAM COUNTY, FLORIDA; SARASOTA COUNTY, FLORIDA; SEMINOL..E COUNTY, FLORIDA; SUWANNEE COUNTY, FLORIDA; TAYLOR COUNTY, FLORIDA; VOLUSIA COUNTY, FLORIDA; and WAKULLA 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. 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. Page 2 of 15 16K2 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 1 The Parties stipulate and agree that the provisions of the Section 409.915, Florida Statutes, as amended by Section 12, speak for themselves, and that the following descriptions thereof are merely a summary of the pertinent provisions rather than a binding agreement as to the Parties' interpretation of the meaning of that statutory section. Page 3 of 15 16K2 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 VII, section 18(a) and (c), Florida Constitution, for violation of the unfunded mandate provisions. The third count asserts that Page 4 of 15 16K2 unpaid claims extending from 2001 - 2008 are time barred pursuant to §§ 95.11(3)(f) 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 (AR.R) 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 16K2 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 16K2 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 16K2 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 16K2 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 Iist 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 courity 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 9of15 IoK2 I 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 16K2 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 409.97.5 (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 16K2' challenged under Chapter 1.20, 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. VII, 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 by September 12, 2012. The Tentative Notice of Acceptance must be accompanied by evidence that the Board Pagel 2 of 15 16K2 of County 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 16K2 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. 16. The Parties recognize that St. Lucie County and St. Johns County are separately represented in this matter, and are not bound by the terms and conditions of this document or any prior stipulation. V. The Parties acknowledge that Broward County is not a party to this Stipulation and is not bound by the teams and conditions of this document or any prior stipulation. DATED this ?,day of September, 2012. AH. Churuti f b Z. ph C. Mellichamp, I r No. 284076 '1 "imotlay E. Deruzis Thornas 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 Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau PL -01, The Capitol Tallahassee, Florida 32399 -1050 Facsimile: 850- 488 -5865 Page 14 of 15 Virginia Saunders De.legal Fla. Bar No. 989932 General Counsel Florida Association of Counties 100 S. Monroe Street Tallahassee, FL 32301 (850) 922 -4300 (850) 488 -7192 (fax) gdelegal @fl- Counties.com 16K2 Stuart Williams, General Counsel Bill Roberts, Deputy General Counsel State of Florida, Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Facsimile: 850 - 921 -0158 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 20, 2012, a copy of the foregoing was furnished via PDF email upon the following counsel of record: Stuart Williams, General Counsel Bill Roberts, Deputy General Counsel State of Florida, Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Facsimile: 850 - 921 -0158 Stuart .williams @acha.myflorida.com Joseph C. Mellichamp, III Timothy E. Dennis Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau PL -01 The Capitol Tallahassee, FL 32399 -1050 Joe. mellichamp@ myfloridalegal.com Page 15 of 15 Gregory Stewart, Esq. Nabors Giblin & Nickerson PO Box 1.1008 Tallahassee, FL 32302 gstewart@ngn:Lally.com 16K2 Page 16 of 1.5 16K2 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, # PL -01 Tallahassee, Florida 32399 Email: joe .mellichamp @myfloridalegal.com The purpose of this letter is to advise the Agency for Healthcare Administration (the "Agency ") and the Florida Department of Revenue (the "Department ") that [ ] 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 County'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 1.1:59 p.m. (Eastern /Standard Time). [Senior Staff /County Administrator/ Manager /Deputy County Administrator/ County Attorney] cc: Ginger Delegal, General Counsel Florida Association of Counties EXHIBIT 1 EXHIBIT 2 List of Counties Choosing the Settlement Option: Brevard County, Florida Charlotte County, Florida Collier County, Florida Duval County, Florida Gilchrist County, Florida Gulf County, Florida Hamilton County, Florida Hardee County, Florida Hendry County, Florida Highlands County, Florida Indian River County, Florida Manatee County, Florida Monroe County, Florida Osceola County, Florida Polk County, Florida Sarasota County, Florida Suwannee County, Florida Taylor County, Florida EXHIBIT 2 16K2 Alachua County, Florida Bay County, Florida Bradford County, Florida Citrus County, Florida Clay County, Florida Dixie County, Florida Escambia County, Florida Flagler County, Florida Franklin County, Florida Gadsden County, Florida Hernando County, Florida Hillsborough County, Florida Lee County, Florida Leon County, Florida Levy County, Florida Liberty County, Florida Madison County, Florida Marion County, Florida Martin County, Florida Miami -Dade County, Florida Nassau County, Florida Okaloosa County, Florida Okeechobee County, Florida Pasco County, Florida Pinellas County, Florida Putnam County, Florida Seminole County, Florida Volusia County, Florida Wakulla County, Florida EXHIBIT 3 List of Counties Choosing to Abate: EXHIBIT 3 16K2 16K2 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)l., 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 county may contest the amount certified by filing a petition under the applicable provisions of chapter 120. This procedure is the exclusive method to challenge the amount certified. (c) September 13, 2012, . 5:00 p.m. Eastern Standard 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: COMPOSITE EXHIBIT 4 Page 1 of 7 16K2 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 Septe ibef �, 2 12. 2. 85 percent of the amount provided in subsection (1)(a) minus amounts credited to the counties and /or paid and received by the Agency pursuant to section (1)(c) for each county that does not challenge the certified amount by filing a petition pursuant to subsection (1)(b) by (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 of the month. (a) Certification 1. For all certifications prior to June 1, 2013, the Agency will certify to the Department of Revenue by the 711, 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 pursuant to subsection (2 W. 3. Beginning July 1, 2013, the Agency will certify to the Department of Revenue by the 711, 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 16K2 4. If the 711, day of the month falls on a weekend or holiday, certification will be completed on the first business day following the 71" day of the month. 5. 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 p.m. Eastern Sward 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 count's highest monthly dispute rate reasonable, the Agency will stay certification of the amount requested in the for- the advanced refund request. b. Refund requests resulting in certification amounts stayed will be researched within 60 days by the Agency. COMPOSITE EXHIBIT 4 Page 3 of 7 16K2 i I. Denied refund requests will be certified to the county on a subsequent bill no later than 45 days from the completion of Agency research. II. 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 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 par-& aph 1. sShall expire on April 30, 2013. 2. Back End Refund Request a. Each county may request a back end refund request noN-e later than 60 days from the date of certification of the monthly bill for which the back end refund request is being requested the b. Back end refund requests must be in writing and must include the reason and documentation for the request, and be reeeived by the agenEy by the last business day of the c. Within 960 days of receipt of the certification retest, 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 COMPOSITE EXHIBIT 4 Page 4 of 7 16K2 transferred to the appropriate county on a subsequent bill, within 60 days of the Agency's 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; e-.-A ju -stet id elc sec . Che g t - written re eip enyii ;eac i End - Refund - Request, e€u o- a4u+u +i -bi 14 b} D tried -Ba,e d Refund C equest -will state the reason for den Rulemaking Authority 409.919 FS. Law Implemented 409.915 FS. History -New COMPOSITE EXHIBIT 4 Page 5 of 7 16K2 I Notice of Chan e� /Withdrawal AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid RULE NO.: RULE TITLE: 59G- 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)l., 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 an recipient individual 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 an- recipient individual is admitted to a nursing home directly from a place of residence outside of the State of Florida. If the recipient individ, is admitted to a nursing home from another state, the nursing home address will be used for county billing purposes. COMPOSITE. EXHIBIT 4 Page 6of7 16K2 (3) Since address information for children in custody of the Department of Children and Families is unavailable, counties are not responsible for these payments. (4) A per-son is Eon sidere e5id -ing county wlien they establish er- maintain a facility. Except in unusual _ions- related -t extended .+ it ffl-.k,..- no ,- dem.,,, how another eetinty, and intend to return to that eeiinty. in all instances the per-son's intent to reside (2) When pplieant -has -b een admitted to a .sing home d .,,Edy r,.e ,-.i.,c ;es,Wertee c ut i f l e-S to of l lcfi4 �44io € orida-- resideney- -has- lea- estabWiedrthe �ituatief�s that are elear + or other-wise all rzomplic-ated, the blec��- tkibas',., the case 4- t#�eCf #ie��e€�,oeialar+d Rulemaking Authority 409.919 FS. Law Implemented 409.915 FS. History -New 1 -1 -77, Formerly 1OC -7.31, 1OC- 7.031, Amended COMPOSITE EXHIBIT 4 :Page 7 of 7 16K2 EXHIBIT 5 Stuart Williams, Esquire General Counsel State of Florida Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Email: stuart.wil.liams@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 .mellicliamp @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 I -IB 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 16K2 EXHIBIT 6 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: _, 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 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.] [If 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 to settle on behalf of the County.] cc: Ginger Delegal, General Counsel Florida Association of Counties EXHIBIT 6