STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, f/k/a )

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 96-1894

)

CRAIG CHAREST, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 11, 1997, in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

For Respondent: Ronald I. Cole, Esquire

11 North Magnolia Avenue Ocala, Florida 34475

STATEMENT OF THE ISSUE

1. May the Department of Children and Family Services properly terminate Respondent as a Medicaid provider pursuant to its letters of March 6, 1996, and the same letter bearing the date, April 12, 1996?

2. If the Department's termination was unlawful, may Respondent be awarded reinstatement and back "wages?"

3. If the Department's termination was unlawful, may Respondent be awarded attorney's fees?

PRELIMINARY STATEMENT

The instant case was referred to the Division of Administrative Hearings by the Department of Health and Rehabilitative Services on or about April 24, 1996. It is based upon March 6, 1996 and April 12, 1996, letters terminating Respondent Charest and his company, Family Choice Support Services, as a Medicaid provider for three years, retroactive to May 1, 1995. Respondent had timely requested formal hearing.

Neither party responded to the Initial Order herein.

Therefore, neither party requested that a formal hearing be convened within any specific time period.

On May 9, 1996, a Notice of Hearing and Order of Prehearing Instructions for September 11, 1996, was issued. On

September 10, 1996, an Order Cancelling Hearing was issued due to the failure of both parties to comply with the Order of Prehearing Instructions. The parties were given 45 days in which to file at least their respective witness and exhibit lists. On October 29, 1996, Respondent moved for an additional fifteen days in which to file a joint prehearing statement. By an Order entered November 22, 1996, the parties were given until

December 9, 1996, in which to file witness and exhibit lists and

to provide mutually convenient dates for formal hearing.1 Petitioner, which by that time had been re-organized as the Department of Children and Families, filed its lists on December 5, 1996. Respondent did not file a list until January 8, 1997.

By a February 4, 1997, Notice of Hearing, this cause was rescheduled for March 14, 1997. On March 11, 1997, Respondent served by mail a Motion for Re-instatement and for Award of Back Wages, which affirmatively prayed for an award of back wages and attorney's fees to Respondent due to alleged unlawful termination. However, the motion made no attack upon the sufficiency of the termination letter(s). The motion was not filed with the Division until March 17, 1997.

Meanwhile, on March 14, 1997, the undersigned was in Ocala, Florida, for formal hearing as scheduled, when she was notified that Respondent's counsel was unable to appear due to a life- threatening condition in a member of his immediate family.

By a March 19, 1997, Order, the parties were given 20 days in which to provide mutually agreeable dates for rescheduling formal hearing. The required response was not forthcoming until April 17, 1997.

By a May 7, 1997, Notice of Hearing, formal hearing was rescheduled for June 11, 1997.

At no time prior to formal hearing on June 11, 1997, did Respondent move to dismiss or otherwise file any response attacking the contents or sufficiency of the March 6, 1996, or April 12, 1996, termination letters.2

Upon the Agency's oral motion at the commencement of formal hearing, the style of this cause was amended, as set out above, to reflect the Agency's name change. The Agency also dismissed the charges relating to false or incorrect information on requests for Medicaid reimbursement in paragraph 3 of the 1996 termination letters.

Respondent orally moved to dismiss the 1996 termination letters due to lack of due process, alleging thereby that he had not been properly notified of the charges against him.3

Although orally denied at that time, some of the issues raised in that oral motion were briefed in the parties' post-hearing proposals and will be re-visited in this Recommended Order.

The undersigned also orally ordered that the issues of jurisdiction and authority to award back wages, reinstatement, and/or attorney's fees should be addressed in the parties' respective post-hearing proposals, and that in the event the Respondent prevailed on the merits, jurisdiction would be retained in the Recommended Order to determine the amount of back wages and attorney's fees.

Thereafter, Petitioner Department presented the oral testimony of Jackie Fagan, Susan Jaynes, and John Pridham and had four of five exhibits admitted in evidence.

Respondent testified on his own behalf and had five exhibits admitted in evidence.

Official recognition was taken of other documents. No transcript was provided.

Time for filing Proposed Recommended Orders was initially agreed-upon, but due to a death in Petitioner's counsel's family, the parties' stipulation extending the filing date until

August 11, 1997, was approved by a July 11, 1997, Order. Petitioner's Proposed Recommended Order was timely filed. Respondent's Proposed Recommended Order was seven days late. It did not comply with the rules of the Division of Administrative Hearings. However, inasmuch as there has been no objection, Respondent's Proposed Recommended Order has been considered.

FINDINGS OF FACT

The Motion to Dismiss

1. On March 6, 1996, the Agency served a termination letter upon Respondent Charest. Because that letter was not sent certified mail, the same letter was re-dated April 12, 1996, and served by certified mail.

2. Respondent Charest timely requested formal hearing, pursuant to Chapter 120, Florida Statutes, but there was no

   request that a formal hearing be conducted within 90 days pursuant to Section 409.335, Florida Statutes.

3. The Preliminary Statement, above, sets out the procedural history of this case before the Division of Administrative Hearings and is incorporated here by reference.

4. The 1996 termination letter(s) provided, in pertinent part, as follows:

   This letter is to notify you of your termination as a Medicaid provider for a term of three (3) years. This termination also applies to your company, Family Choice Support Services. Since you were suspended effective May 1, 1995, the suspension of three years will run from that date, making you eligible to reapply for certification as of May 1, 1998.

   This termination is pursuant to

   §409.913(9)(b), Florida Statutes. Termination is authorized by the fact that you have violated the provisions of

   §409.13(8) by:

   
   

   1. Failing to provide Medicaid-related records on a timely basis as required under

      §409.913(8)(g).

      
      

   2. Failing to abide by the requirements of state law as required by §409.913(8)(h), in that you violated §409.919(2)(e) by offering Jackie Fagan compensation in return for referring clients to you. Also by submitting false or misleading information in connection with your application to qualify as a support coordinator eligible for Medicaid reimbursement in violation of §409.919(2)(g).

      
      

   3. Submitting applications and requests for reimbursement containing materially false or incorrect information in violation of

      §409.913(8)(j) and (k). (emphasis supplied)

5. Paragraph 3 of the termination letters, alleging that Respondent had submitted requests for reimbursement containing materially false or incorrect information in violation of Section 409.913(8)(j) and (k), was orally dismissed by the Agency at the commencement of formal hearing.

6. Respondent Charest previously had requested formal hearing in DOAH Case No. 95-3469. Charges in that case arose from April 24, 1995, and May 23, 1995, suspension letters similar to the March 6, 1996, and April 12, 1996, termination letters in the instant case. At the commencement of that formal hearing, Mr. Charest had moved to dismiss DOAH Case No. 95-3469 because the administrative complaint (the 1995 suspension letters) were based on an unadopted Agency rule. The DOAH Hearing Officer entered a December 15, 1995, Recommended Order which recommended that the Agency grant the Motion to Dismiss. The August 7, 1996, Agency Final Order read, in pertinent part,

   The department's certification termination letter cites only violation of certain unadopted rules. No other authority . . . is provided . . . . I must, therefore, concur

   . . . that the termination letter is facially deficient. Accordingly, it is ORDERED that the administrative action against petitioner's provider certification is dismissed. (emphasis supplied)

7. At formal hearing in the instant case, Respondent moved to dismiss the 1996 termination letters. In part, he asserted that the formal hearing of June 11, 1997, was not timely, pursuant to Section 409.335, Florida Statutes.4

8. Respondent further asserted that the 1996 termination letters were vague because, pursuant to Section 409.913(9)(a), a suspension cannot be for more than one year, and the current charging documents were insufficient to advise him if he were subject to suspension or termination.5

9. The remaining thrust of Respondent's oral Motion to Dismiss was that due process had not been afforded to him because he had been given inadequate notice of the charges in the

   March 6, 1996, and April 12, 1996, termination letters because Sections 409.13(8), 409.919(2)(e), and 409.919(2)(g) do not exist.

10. The Agency conceded that its citation to Section 409.13(8) in the second sentence of the 1996 termination letters was in error because the correct citation should have been to Section 409.913(8) Florida Statutes. The Agency also conceded that the termination letters' citation to Section 409.919(2)(e) and 409.919(2)(g) also should have been to 409.920(2)(e) and 409.920(2)(g), respectively.

11. The undersigned orally denied Respondent's motion to dismiss and specifically found that there was clear and adequate pleading within the 1996 termination letters at least as to the statutory citations within numbered paragraphs 1 (Section 409.913(8)(g), Florida Statutes) and numbered paragraph 2 (Section 409.913(8)(h), Florida Statutes), and that under the circumstances of this case, the letter as a whole otherwise gave

    adequate notice of the charges Respondent would be called upon to defend against. However, the parties were also instructed that the issue of the statutory discrepancy in the 1996 termination letters could be re-visited in the parties' post-hearing proposals.

    The Merits

    
    

12. Respondent began working as a Medicaid provider and support coordinator during February 1993.

13. On June 20, 1993, Respondent signed a Florida Medicaid Provider Enrollment Application for certification as a Medicaid provider and was certified. On this application, Respondent answered "yes" to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pretrial intervention program?" Respondent was certified, despite his affirmative answer, which related to a pre-1993 assault charge based on a dispute with a neighbor. No further Agency action ensued.

14. Annual re-applications and re-certifications of provider status were anticipated, but due to creation of the Agency's new Geographic Service District 13, in order to comply with increased screening by the abuse-prevention registry, and because of missing paperwork for 1994, the Agency asked Respondent to apply for re-certification in December 1994.

15. On December 13, 1994, Respondent signed a new Florida Medicaid Provider Enrollment Application for recertification. At

    that time, he answered "No," to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pre-trial intervention program?" The Agency did not pursue the discrepancy between Respondent's June 20, 1993, and December 13, 1994, applications. However, a 1995 "screening," pursuant to Chapter 415, Florida Statutes, alerted Agency Medicaid personnel to the problem. When requested, Respondent provided the Agency with a 1993 "Disposition of Charges" on a domestic violence charge against him. That document is not in evidence, but apparently, it did not show that any pre-trial intervention had taken place and suggested that the case was dismissed. The Agency did not pursue the matter.

16. At formal hearing, official recognition was taken of an "Announcement Of No Information" entered December 8, 1993, in State of Florida v. Charest, Marion County Court Case No. 93- 9765MM. Therein, the State Attorney in and for Marion County announced that the case would not be prosecuted on the basis that the defendant, (the Respondent herein) participated in, and successfully completed the Salvation Army Probation Pre-Trial Intervention Deferred Prosecution Domestic Violence Program.

    
    

17. Respondent maintained that he had never received a copy of the Announcement of No Information and that no one had adequately informed him that the December 1993 domestic violence

    charges against him were not simply dismissed. However, he also admitted that he had been required to go to at least one session of counseling as a result of a 1993 domestic violence case and that this had occurred since he had filled out his original

    June 20, 1993, application. Considering Respondent's testimony concerning his work experience with the Department of Corrections and his 20 years as a mental health counselor, the undersigned does not find credible Respondent's protestations that he did not know that he had been involved in December 1993 in a pre-trial intervention program for domestic violence.

18. Therefore, it is found that Respondent knowingly submitted false or misleading information on an application to the Medicaid Program for the purpose of being accepted as a Medicaid provider.

19. Due to the vulnerability of the mentally challenged clients served by support coordinators, a charge of domestic violence and entry into a pre-trial intervention program are material to Respondent's fitness as a provider of services for the Agency's clients and should have been disclosed.

20. Support plans are necessary to determine what services are appropriately reimbursable by Medicaid.

21. The Agency experienced an ongoing problem in that most of its providers filed their "support plans" late, pursuant to Section 409.313(8)(g), Florida Statutes. Respondent's company

    submitted untimely reports in a greater degree than any other similar provider.

22. Respondent was only one of two principals in his company.

23. The Agency requested a Corrective Action Plan from Respondent, due April 1, 1994.

24. Respondent's company continued to have chronically late plans after April 1, 1994.

25. Respondent was cautioned on several occasions about the importance of timely submission of support plans, more particularly in a January 31, 1995, letter.

26. Despite Respondent's hiring someone to assist him, five of eight reports attributable to him were still late just prior to his termination.

27. Jackie Fagan is a staff member of the Key Learning Center operated by the Citrus County Association for Retarded Citizens. She was employed in that capacity in 1994 and 1995.

28. Over several months in the latter part of 1994, Respondent negotiated with Ms. Fagan, trying to hire her for his company as a support coordinator. Ultimately, Respondent's increased salary offers did not entice Ms. Fagan to leave her 20- year employment with Key Learning Center. Part of the negotiations seem to have included Respondent's offer of a

    "bounty" to Ms. Fagan for each client who transferred to Respondent's company, when and if Ms. Fagan changed employments. There is no concensus on whether this would have been ethical.

29. Even after she finally turned down Respondent,

    
    

    Ms. Fagan also understood Respondent to be offering her a bounty for any client she was able to sway to change to his company.

    Ms. Fagan clearly remembered that Respondent told her he would have to pay her off the premises of Key Training Center for this type of service. Susan Jaynes, who was Ms. Fagan's secretary, overheard Respondent say that if Ms. Fagan recommended clients to him, he "would make it worth her while."

30. Originally, the Agency had required Respondent to bill Medicaid in quarter-hour increments, but at the time of Respondent's "bounty" conversations with Ms. Fagan after she had turned down his offer of employment, Medicaid paid support coordinators $147.00 per month for each client signed up with the support coordinator. Each support coordinator would have 30 to

    35 clients at any one time.

    
    

31. There was not a complete overlap of services between the type of services provided by Key Learning Center and Family Choice Support Services. However, where there was an overlap, the effect of Ms. Fagan proselytizing for Respondent would have been to persuade vulnerable mentally challenged clients and/or their supportive family members to change support coordinators for purely economic gain to Ms. Fagan and Respondent. It was

    contrary to Key Learning Center's ethical policy. Ms. Fagan also considered this type of persuasion ethically wrong. She reported it.

32. Respondent established that if Key Learning Center employees simply handed out his advertising flyers, there would be no legal or ethical offense, although it was also shown that it was more common for him to mail his flyers directly to potential clients living in family homes.

33. Respondent testified, without refutation or corroboration, that upon learning of his attempts to hire

    Ms. Fagan, the director of Key Learning Center had not permitted him to come on its premises to pick up and deliver mutual clients and had threatened Respondent that if he hired Ms. Fagan away, the director would see that Respondent lost all his own clients. Assuming, but not finding, that such a threat was actually made, it was never demonstrated that the director of Key Learning Center could carry out this alleged threat or that he ever approached or influenced the Agency to file charges against Respondent.

34. The Agency suspended Respondent's certification on May 1, 1995, and the prosecution of DOAH Case No. 95-3469 then

    took the route described above in Finding of Fact 6. The Agency never restored Respondent's certification pending resolution of Respondent's first request for formal hearing in DOAH Case No.

    95-3469. Respondent has been effectively decertified since

    May 1, 1995. He has been unable to draw on Medicaid funds pursuant to his certification since May 1, 1995.

35. The 1996 termination letters in the instant case preceded exhaustion of any one year suspension under the 1995 suspension letters and also preceded the August 7, 1996, Final Order in the prior case.

36. Even if de-certification had been frozen pending Section 120.57(1) proceedings, any certification existing on May 1, 1995, would have expired at the latest one year from its grant, pursuant to Respondent's December 13, 1994 application.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes. All further references herein to statutes refer to those statutes in effect at the material dates of May 1, 1995, through April 12, 1996.

38. It is concluded as a matter of law that Respondent had no employment relationship with the Agency, and therefore, regardless of whether or not he might prevail herein, Respondent is not entitled to any "reinstatement" or award of back wages. Moreover, the Division of Administrative Hearings has no jurisdiction, authority, or power to award either of these items. Respondent concedes as much in his Proposed Recommended Order. The Motion for Reinstatement and Back Pay is denied.

39. The recitation of prior oral rulings on Respondent's

    oral Motion to Dismiss are adopted and incorporated herein as a Conclusion of Law.

40. The following Conclusions of Law cover any remaining issues raised by the oral Motion to Dismiss.

41. Section 409.913(8), Florida Statutes, provides, in pertinent part,

    (8) The department may impose administrative sanctions against a Medicaid provider if:

    
    

    * * *

    
    

    1. The provider has not furnished, upon reasonable notice, such Medicaid-related records as the department found necessary to determine whether Medicaid payments are or were due and the amounts thereof;

       
       

    2. The provider is not in compliance with provisions of . . . state laws, . . . as such provisions apply to the Medicaid program;

    
    

42. Section 409.919, Florida Statutes, provides,

    
    

    Rules - - The department shall adopt any rules necessary to comply with or administer ss. 409.901-409.920 and all rules necessary to comply with federal requirements.

    
    

43. Section 409.920(2), Florida Statutes, provides, in pertinent part,

    
    

    (2) Any persons who:

    
    

    * * *

    
    

    (e) Knowingly . . . offers, . . . any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind, in return for referring an individual to a person for the furnishing . . . of any . . . service for which payment may be made, in whole or in part, under the Medicaid program, . . . is

    guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

    * * *

    (g) Knowingly submits false or misleading information or statements to the Medicaid program for the purpose of being accepted as a Medicaid provider is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.6

44. Respondent's Motion to Dismiss was not based on theories of estoppel, double jeopardy, res adjudicata, or "law of the case" due to dismissal of DOAH Case No. 95-3469 upon facial deficiencies of the 1995 suspension letters. In his Motion to Dismiss, Respondent asserted only that he had been denied sufficient notice of the charges. He has never asserted surprise or prejudice in the preparation of his defense. Indeed, he has engaged in no discovery.

45. It is specifically concluded that Respondent was given legal and sufficient notice of the charges against him and was not misled by the 1996 termination letters. The Motion to Dismiss is denied in toto.

46. The error in the second sentence of the second paragraph of the 1996 termination letters by citing to Section 409.13(8) instead of Section 409.913(8), is merely a clerical error in omitting one numeral. The first sentence of the same paragraph clearly states that termination was pursuant to Section 409.913(9)(b). That statute provides that termination of one to twenty years may be imposed for any of the acts described in

    Section 409.913(8). In addition, each of the numbered subparagraphs of the second paragraph correctly refers to Section 409.913(8). Subparagraph 1 clearly names Subsection 409.913(8)(g), and subparagraph 2 clearly names Subsection 409.913(8)(h), Florida Statutes. Any other pleading errors were not sufficient to deny due process.

47. The incorrect citations to Section 409.919(2)(e) and (g), rather than Section 409.920(2)(e) and (g), are not misleading if one looks at the whole instead of focusing on one small part. The sentences containing the incorrect citation stated the nature of the charges against Respondent. Respondent was charged with offering Jackie Fagan compensation for the referral of clients to Respondent, which is made a third degree felony by Section 409.920(2)(e). Respondent was also charged with submitting false or misleading information in connection with his application, which is made a first degree misdemeanor by Section 409.920(2)(g). When looking at these incorrect numerical citations, it is important to look at the termination letters' subparagraph as a whole. The subparagraph charges that Respondent failed to abide by the requirements of state law as required by Section 409.913(8)(h), by offering payment for referrals and submitting false or misleading information. The use of common English over statutory numbers is sufficient in administrative proceedings. Moreover, with regard to the statutory numbering, all Respondent would have had to do is look

    at the Index in Volume 5, Florida Statutes (1995) to see that unlawful acts and penalties under the Medicaid Program are contained in Sections 409.907, 409.910, 409.913, and 409.920. By referring to these four statutory sections, it would have been readily ascertainable by Respondent, or his counsel who represented him from the outset, that the specific factual charges are described in Section 409.920(2)(e) and (g). If Respondent or his counsel was still uncertain after such minimal research, there was more than adequate time to move to dismiss or for a more definite statement prior to final hearing.7

48. In examining the question of due process, it must be considered that this is an administrative proceeding. As stated by the Supreme Court of Florida in Hadley v. Department of Administration, 411 So. 2d 184, 187 (Fla. 1982):

    Several considerations further convince us that petitioner's due process rights were protected. First, "procedural due process in the administrative setting does not always require application of the judicial model." Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct.

    1723, 1729, 52 L.Ed.2d 172(1977). Thus the

    formalities requisite in judicial proceedings are not necessary in order to meet due process requirements in the administrative process. The observations made by this Court in State ex rel. Williams v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705 (1934),

    regarding proceedings before the state board of dental examiners are relevant here:

    
    

    [C]harges before boards, such as the state board of dental examiners, need not to be stated with the technical nicety or formal exactness required of pleadings in the courts, nor are the proceedings before the

    board required to conform in every respect to that controlling in strictly judicial proceedings.

    * * *

    
    

    [I]n such proceedings it is sufficient if the accused is informed with reasonable certainty of the nature and cause of the accusation against him, has reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in fair and impartial manner, free from any just suspicion or prejudice, unfairness, fraud, or oppression.

    Id. 156 So. at 709-10.

    
    

49. The Hadley court also used a balancing-of-interests test and determined that the public interest in removing public employees who do not work outweighed Hadley's interest in retaining his job with the state. In this case, the taxpayers' and developmentally disabled clients' interests in an efficient, honest, and fair Medicaid program outweigh any technical niceties in determining whether Respondent should keep his provider certification. Respondent has the further safeguard of judicial review of the Final Order herein. See Hadley v. Department of Administration, 411 So. 2d at 188, and Section 120.68, Florida Statutes.

50. On the merits of the case, the duty to go forward is upon the Agency to prove "by a preponderance of the evidence" that Respondent committed the offenses charged. See Dileo v. School Board of Dade County, 569 So. 2d 863 (Fla. 3d DCA 1990). Even so, I conclude that the proof herein meets the "clear and convincing" standard in proving that Respondent violated Section

    409.913(8)(h) by failing to abide by the statute prohibiting soliciting referrals by offering compensation and the submission of false or misleading information in an application. Petitioner similarly established that Respondent violated Section 409.913(8)(g) through Respondent's repeated failure to submit case plans on a timely basis.

51. Having proven its charges, the Agency may, pursuant to Section 409.913(9), impose a sanction as provided by the guidelines established in Section 409.913(10), Florida Statutes.8

52. Having weighed all those factors, it is concluded that termination for three years, retroactive to May 1, 1995, is within the range of termination periods authorized by Section 409.913(9)(b) and comports with the guidelines.

53. It is noted that there is no statutory provision requiring licensure as an Individual Support Coordinator and that just because Respondent could not operate his own business as an authorized medical provider without such certification, he could still work as an employee for a certified entity or could operate his business subject to private pay or private insurance income.

54. Since Respondent has not prevailed and has demonstrated no theory upon which attorney's fees may be awarded, the motion for attorney's fees is denied.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a Final Order ratifying its termination of Respondent's certification as a Medicaid individual support coordinator provider, retroactive to May 1, 1995.

DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997.

ENDNOTES

1/ A Corrected Order was entered December 11, 1996.

2/ These 1996 termination letters constitute the charging documents in the instant case and may be considered the equivalent of a "petition," "administrative complaint," or "notice of intended agency action."

3/ Clearly, this oral Motion to Dismiss is more than a year past the time-frame contemplated by Rule 60Q-2.004, Florida Administrative Code, and left no reasonable opportunity for response by the Agency which had appeared for formal hearing by counsel with three witnesses.

4/ Section 409.335, Florida Statutes (1995), applies to recovery of Medicaid payments made due to mistake or fraud. The statute was amended and transferred to Section 414.41, Florida Statutes, by Section 44, Chapter 96-175, Laws of Florida. Any application of this statute to the instant case would have to be based upon numbered paragraph 3 of the 1996 termination letters which was orally dismissed by the Agency at the commencement of formal hearing. (See the Preliminary Statement and Findings of Fact 2 and 5, above.) Section 409.335 is, therefore, irrelevant to these proceedings. Also, no request that the hearing be conducted within a 90-day time-frame was ever made. Moreover, any delay in hearing date in this cause was waived by the parties jointly and severally as shown by the history of this case before the Division of Administrative Hearings. (See the Preliminary Statement and Finding of Fact 2, above.)

5/ The 1996 charging documents/termination letters clearly specify the word "termination" in the first paragraph. They also clearly specify a termination of three years. (See Finding of Fact 4). Section 409.913(9)(b), Florida Statutes, clearly permits terminations of 1 to 20 years. (See Conclusions of Law 51-52.)

6/ It is noted that Respondent Charest has never been convicted of any crime, but the conviction of a felony or misdemeanor is not a prerequisite to administrative sanctions under Chapter 409, Florida Statutes (1995). Also, in 1996, the statutes involved were amended and reorganized, effective July 1, 1996, and

October 1, 1996, to more clearly indicate that a conviction of a Medicaid misdemeanor or felony is not necessary for the agency to impose sanctions. See Sections 409.913(8), 409.913(14)(c) [formerly 409.913(8)(g)], 409.913(14)(e) [formerly 409.913(8)(h)], 409.913(14)(i) [formerly 409.920(2)(g)] and

409.913(15) [formerly 409.913(9)(b)]. While the new statutes may not be applied retroactively, they may be indicative of legislative intent. See Anthony Abraham Chevrolet co., Inc. v.

Collective Chevrolet, Inc., 533 So. 2d 821 (Fla. 1st DCA 1988).

7/ See the Preliminary Statement, Ibid., n. 2, and Finding of Fact 2.

8/ See Ibid., n. 5.

COPIES FURNISHED:

Ralph J. McMurphy, Esquire Department of Children

and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

Ronald I. Cole, Esquire

11 North Magnolia Avenue Ocala, Florida 34475

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-001894

Orders for Case No: 96-001894