Mae Volen Senior Center, Inc. v. Area Agency on Aging Palm Beach/Treasure Coast, Inc.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2008
MAE VOLEN SENIOR CENTER, INC.,
Appellant,
v.
AREA AGENCY ON AGING PALM BEACH/TREASURE COAST, INC.,
STATE OF FLORIDA, DEPARTMENT OF ELDER AFFAIRS, and RUTH
RALES JEWISH FAMILY SERVICE OF SOUTH PALM BEACH COUNTY,
Appellees.
No. 4D06-2992
[February 13, 2008]
WARNER, J.
This case involves a challenge by Mae Volen Senior Center, Inc. to the
Area Agency on Aging Palm Beach/Treasure Coast, Inc.’s (“AAA”) notice
of intent to award to another provider a contract for designation as lead
agency pursuant to a request for proposals issued by the AAA. An
appeal was filed with the Department of Administrative Hearings
(“DOAH”), and the assigned administrative law judge dismissed the
appeal for lack of subject matter jurisdiction. We reverse the order
dismissing for lack of jurisdiction, concluding that the DOAH has
jurisdiction to hear appeals involving the area agencies on aging.
In response to the federal Older Americans Act of 1965, 42 U.S.C. §
3001 et seq., the Florida Legislature created a means of serving the
elderly of the state through a continuum of community-based care
administered by area agencies on aging. See § 430.201 et seq., Fla. Stat.
Area agencies on aging are organizations designated by the Department
of Elder Affairs (“DOEA”) to coordinate and administer DOEA programs
and to provide, through contracting agencies, services for the elderly
within a planning and service area. § 430.203(1), Fla. Stat. Area
agencies may be either public or private nonprofit entities. Florida has
eleven area agencies on aging. The area agencies are all subject to the
public records act and the sunshine laws of the state when considering
any contracts requiring the expenditure of public funds. § 20.41(9), Fla.
Stat. (2007). Appellee AAA is responsible for a planning service area
which encompasses Indian River, Martin, Okeechobee, Palm Beach, and
St. Lucie counties. It is a private, non-profit corporation.
Pursuant to federal law, and in order to receive federal funds, the
DOEA as the designated state agency is required to have a state plan for
elderly services. 42 U.S.C. § 3027. The state plan must require each
area agency on aging to submit a plan consistent with federal law
regarding the provision of services for the elderly. Id. The state plan
must have a hearing process for disputes regarding service providers:
(5) The plan shall provide that the State agency will—
(A) afford an opportunity for a hearing upon request, in
accordance with published procedures, to any area agency
on aging submitting a plan under this subchapter, to any
provider of (or applicant to provide) services . . . .
42 U.S.C. § 3027(a)(5)(A).
The DOEA has adopted detailed rules with respect to the provision of
services through the agencies on aging. The rules provide that “[t]he
Department shall administer directly or through an Area Agency on
Aging, at least one community care service system in each planning and
service area where practical.”
Fla. Admin. Code R. 58C-1.003(1)
(emphasis added). Area agencies are responsible for the planning of
services and receipt and distribution of public funds for those services to
the elderly. To accomplish this work, area agencies on aging must
contract with a “lead agency” for provision of services at least once every
three years through a request for proposal process. See § 430.203(9),
Fla. Stat. A lead agency is “given authority and responsibility to
coordinate some or all of the services, either directly or through
subcontracts, for functionally impaired elderly persons.” § 439.203(9)(c),
Fla. Stat.
The DOEA is responsible for developing guidelines for the area agency
requests for proposals (“RFP”) for lead agencies in consultation with area
agencies.
§ 430.202(9)(a), Fla. Stat. Such contracts must be in
accordance with the rules and contract procedures of the Department.
Fla. Admin. Code R. 58C-1.003(1)(a)16. The agencies must also follow
“competitive bidding procedures in procurement contracts in accordance
with State and Federal regulations.” Fla. Admin. Code R. 58A-1.008(2).
These provisions are applicable to “agencies.”
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The DOEA rules provide that one responsibility of an area agency is to
“[e]stablish procedures for appeals regarding contracts for lead agencies .
. . .” Fla. Admin. Code R. 58C-1.003(1)(a)20. This responsibility is also
included in the guidelines for RFPs issued by the DOEA and contained in
appellant’s appendix. Those guidelines require the DOEA to review RFPs
prior to issuance.
AAA’s RFP includes protest guidelines, as required by the DOEA. The
procedures for filing a bid protest in these guidelines copy the required
procedures under section 120.57(3), as required of agencies subject to
the Administrative Procedure Act (“APA”). A protest involving disputed
issues of material fact and not resolved by mutual agreement shall be
referred to the Division of Administrative Hearing for further proceedings.
Id. Section 120.57(3)(e) authorizes the DOAH to conduct hearings on bid
protests from agencies subject to the act.
AAA submitted a request for lead agency bids for its area and
obtained two proposals, one from Mae Volen and one from Ruth Rales,
another agency which was awarded the bid. Mae Volen filed a formal bid
protest with AAA. Pursuant to the protest guidelines in the RFP, and
reviewed by the DOEA prior to issuance, the protest was transferred to
the DOAH.
Before the hearing officer, the Department contended that the DOAH
did not have jurisdiction because Mae Volen was a private, non-profit
entity, and not a state agency. The trial court agreed and dismissed the
appeal. Mae Volen appeals the dismissal.
The DOAH is authorized to hear bid protest disputes from “agencies.”
§ 120.57(3), Fla. Stat.
The definition of “agency” under the
Administrative Procedures Act includes:
(b) Each:
1. State officer and state department, and each departmental
unit described in s. 20.04.
2. Authority, including a regional water supply authority.
3. Board, including the Board of Governors of the State
University System and a state university board of trustees
when acting pursuant to statutory authority derived from the
Legislature.
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§ 120.52(1)(b), Fla. Stat.
In establishing the DOEA, the legislature provided:
(2) The department shall plan and administer its programs
and services through planning and service areas as
designated by the department.
....
(6) In accordance with the federal Older Americans Act of
1965, as amended, the department shall designate and
contract with area agencies on aging in each of the
department’s planning and service areas. Area agencies on
aging shall ensure a coordinated and integrated provision of
long-term care services to the elderly and shall ensure the
provision of prevention and early intervention services. . . .
(7) The department shall contract with the governing body,
hereafter referred to as the “board,” of an area agency on
aging to fulfill programmatic and funding requirements. The
board shall be responsible for the overall direction of the
agency’s programs and services and shall ensure that the
agency is administered in accordance with the terms of its
contract with the department, legal requirements,
established agency policy, and effective management
principles. The board shall also ensure the accountability of
the agency to the local communities included in the planning
and service area of the agency.
§ 20.41, Fla. Stat. (2006) (emphasis added). Because the legislature
designated the area agencies on aging as “boards” performing the
programmatic and funding requirements of the DOEA, as well as the fact
that they exercise multi-county authority and perform essentially
government functions in authorizing the spending of public funds and
contracting with lead agencies, we conclude that the DOAH has authority
to hear this bid protest.
Although AAA is a nonprofit corporation, the DOEA rules provide that
the DOEA functions through these area agencies on aging, corporations
it selects and provides funding. The area agencies determine the need
for elderly services in their areas, plan for the provision of those services,
and receive funds from the government which they then distribute to
service providers. In all respects they act as an arm of the state agency.
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They are required to comply with the public records act and the sunshine
laws with respect to the contracts requiring the expenditure of public
funds, which would include lead agency contracts. They are required to
follow state contracting guidelines and requests for proposals. Under
these circumstances, where the nonprofit corporation functions under
the direction and as a public agency for the purpose of contracting with
lead agencies, we do not deem its “private” label as dispositive of whether
it is an agency for purposes of the APA. See Fla. Governor’s Council on
Indian Affairs v. Tuveson, 384 So. 2d 217 (Fla. 1st DCA 1980); Fla. Dep’t
of Ins. v. Fla. Ass’n of Ins. Agents, 813 So. 2d 981, 983 (Fla. 1st DCA
2002) (“legislature intended that only entities performing a traditional
governmental function would be subject to the Act”).
We distinguish Vey v. Bradford Union Guidance Clinic, Inc., 399 So. 2d
1137 (Fla. 1st DCA 1981), in which the court held that a private clinic
which provided mental health services for a mental health board was not
an agency within the meaning of the APA. There, the clinic performed
medical services under a contract which described the clinic as an
independent contractor. It was a private service provider. In contrast, as
defined by both statute and rule, the area agencies on aging are not
service providers. They are coordinators and administrators of the
department’s programs. § 430.203(1), Fla. Stat. In contracting for lead
agency services, they perform the same functions as an executive
administrative agency.
AAA exercises authority in a multi-county area.
The territorial
approach confers APA jurisdiction where entities are authorized to
exercise their governmental powers in a multi-county areas.
See
Orlando-Orange County Expressway Auth. v. Hubbard Constr. Co., 682
So. 2d 566, 567-68 (Fla. 5th DCA 1996). This too supports APA
jurisdiction.
The statutes and the rules created the structure for provision of
elderly services by designating the area agencies on aging to perform the
DOEA’s functions and responsibilities within their region.
Those
statutes and rules required that there be an appeal process for bid
protests in compliance with statutory bid procurement procedures.
Those procedures include hearings of bid protests before an
administrative hearing officer. Hearing officers have authority to hear
bid protests.
If we ignore all of this, then no appeal process is available, contrary to
statute. A disgruntled bid protester is limited to suit in circuit court,
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which is not an appeal.1 If there is no appeal, then an important right
required under both state and federal law is lost.
In concluding that the administrative hearing officer has jurisdiction
to hear appeals from bid protests on RFPs for lead agency contracts with
area agencies on aging, our ruling is very narrow. And if we are wrong in
our analysis, and the legislature did not intend to confer jurisdiction on
the DOAH to hear appeals of these cases, then it can certainly clarify the
issue. All we decide is that the administrative hearing officer has
jurisdiction to hear this bid protest for a lead agency contract.
Reversed.
POLEN and HAZOURI, JJ., concur.
*
*
*
Appeal from the State of Florida Division of Administrative Hearings;
Patricia M. Hart, Administrative Law Judge; L.T. Case No. 06-2291 BID.
Donna E. Blanton and Elizabeth McArthur of Radey Thomas Yon &
Clark, P.A., Tallahassee, for appellant.
Cynthia S. Tunnicliff, Brian A. Newman and Brandice D. Dickson of
Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for
appellee Area Agency on Aging Palm Beach/Treasure Coast, Inc.
Barbara M. Crosier, Robert N. Clarke, Jr. and Jason B. Gonzalez,
Tallahassee, for appellee State of Florida Department of Elder Affairs.
Matthew Triggs and Gary W. Kovacs of Proskauer Rose LLP, Boca
Raton, for appellee Ruth Rales Jewish Family Service.
Not final until disposition of timely filed motion for rehearing.
The DOEA suggests that the remedy is a petition for certiorari, but that is
available to challenge agency action or local governmental actions. This is
contrary to the DOEA’s claim that AAA is a private entity and not an agency
(whether local or state).
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