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State cancels a questionable testing contract

Days after a lawsuit alleged two state entities awarded a testing contract based on information it knew to be inaccurate, the state cancelled the contract.

Professional Healthcare Development, an Ona-based testing company, filed suit Dec. 13 in Kanawha Circuit Court alleging the state purchasing division awarded a contract to a company based on misleading statements, and the state Department of Health and Human Resources defended the decision.

PHD had administered the nurse aide training for the state since 2001. There is no state money involved, but the company awarded the contract collects testing fees from those who need the certification.

On Tuesday the purchasing division cancelled its contract with Pearson Vue, the Pennsylvania-based company awarded the contract earlier this year, according to public records provided by purchasing division spokeswoman Diane Holley-Brown. 

Jolynn Marra, director of the DHHR's Office of Health Facility Licensure and Certification, sent a letter dated Monday to DHHR purchasing director Bryan Rosen. It explains why the state decided to cancel the contract.

Marra states that a certain portion of the request for proposal and her office's clarification of that portion of the document were "ambiguous." She asks Rosen to cancel the award so the department can rebid the contract after removing the potentially confusing portion.

The portion in question surrounds whether a particular type of nurse assistant testing can be administered in writing or orally. It was one of the seven objections PHD brought up in its lawsuit.

The requirement in the contract request for administering the approved medication assistive personnel exam states the test can be given "via a computer, or paper and pencil and orally." The people who need to take this exam, called AMAPs, are expected to identify and administer medication to patients, PHD states in its lawsuit.

Professional Healthcare Development argues that it's imperative AMAPs be literate to understand what medications they are distributing. Allowing someone to take the AMAP exam orally is problematic, the company contends

On Nov. 15 PHD sent this and other concerns to purchasing division director David Tincher. Tincher temporarily placed a cease-and-desist order on the contract, but information supplied by Pearson Vue, Marra and Rosen eventually led to restoration of the contract.

In response to PHD's allegations, Pearson Vue stated it did meet the requirements outlined concerning administration of the AMAP test. However, Rosen himself sent questions to Pearson Vue employees about that portion of their bid document the same day he said the company's bid was clear and sufficient.

On the morning of Dec. 4, Rosen sent an email to two Pearson Vue employees asking about AMAP testing. In Pearson Vue's bid documents, it states it will allow AMAP candidates to take the written AMAP exam "via computer only." Rosen asks whether that means Pearson Vue intends to provide the test orally, too.

Later that afternoon, a Pearson Vue representative wrote back to Rosen to say the company would provide the test via computer, on paper and orally.

The morning of Dec. 5, Rosen asked that same Pearson Vue employee whether the company "contemplated providing oral AMAP testing in their original bid submission," calling the question a matter of semantics.

At 4:36 that afternoon the employee responded, stating the company does provide oral exams but the request for proposal did not explicitly ask about candidates who might qualify for oral testing under the Americans with Disabilities Act. In a letter dated Dec. 5 sent from Rosen to Tincher, he states Pearson Vue had met all of the contract requirements concerning AMAP testing.

A temporary cease-and-desist order against Pearson Vue went into effect Dec. 15 in response to the lawsuit, said PHD's attorney, Nick Casey. On Thursday Casey said he had also received a fax from Denise and Mark Cihy, owners of PHD, that stated the DHHR wanted to enter into a 120-day contract with the company to provide the nurse aide testing.

Casey said the state can enter into such a contract when an emergency situation arises, such as the cancellation of a contract. He said he expects the contract to be rebid sometime soon. DHHR spokeswoman Marsha Dadisman said she could not comment due to the PHD lawsuit.

In its lawsuit, PHD asks the court to cancel the current agreement, rebid the contract and prevent Pearson Vue from submitting another bid. It alleges Pearson Vue used inaccurate information in its bid documents - including data suggesting it had entered into a contract with a consultant who denies any official agreement - to obtain the contract, and it shouldn't be allowed to try again.

Marra's letter to Rosen did not specify when the contract would go back out for bid or if there were any restrictions on companies that could participate.

Denise Cihy did not return a message Thursday, but earlier this week the Cihys said they intended to continue pursuing legal action.

The lawsuit, officially filed against Tincher, was assigned to Circuit Judge Charles King. Tincher has 20 days to respond to the allegations from the day it was filed. He had not done so as of Thursday.

Contact writer Dave Boucher at 304-348-4843 or david.boucher@dailymail.com. Follow him at www.twitter.com/Dave_Boucher1.


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