STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RODOLFO ALONSO, )

)

Petitioner )

)

vs. ) Case No. 97-2365

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on December 8, 1997, at Miami, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ernesto S. Medina, Esquire

550 Northwest 42nd Avenue, Suite 217 Miami, Florida 33126

For Respondent: Mark S. Thomas, Esquire

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

Whether Petitioner's application for reenrollment in the Medicaid program should be granted.

PRELIMINARY STATEMENT

By letter dated March 17, 1997, Respondent, Agency for

Health Care Administration (AHCA), denied the request of Petitioner, Rodolfo Alonso (Alonso), to reenroll in the Florida Medicaid program on the basis that he had a felony record for possession of narcotics, that adjudication had been withheld, and that he had been placed on probation. The letter stated that his Medicaid provider number would be canceled pursuant to Section 409.907(9)(f), Florida Statutes, and his Medicaid Provider Agreement. The denial letter was amended by letter dated

April 8, 1997, to state that the felony record was for carrying a concealed weapon and practicing optometry without a license.

Alonso requested an administrative hearing.

On May 16, 1997, the Division of Administrative Hearings received a request from the Respondent for the assignment of an administrative law judge to conduct proceedings in this case.

The final hearing was scheduled for September 17, 1997. On September 5, 1997, Respondent filed a motion for continuance.

The motion was granted, and the final hearing was rescheduled for December 8, 1997.

Neither party presented witnesses at the final hearing. The parties have stipulated to the majority of the facts of the case. Respondent's Exhibits 1, 2, and 2A were admitted in evidence.

Petitioner submitted no exhibits.

The parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on January 2, 1998. Petitioner filed his proposed

recommended order on January 13, 1998, and Respondent filed its proposed recommended order on January 9, 1998. The undersigned has considered the parties' proposed recommended orders in rendering this recommended order.

FINDINGS OF FACT

1. Petitioner, Agency for Health Care Administration (AHCA), is the executive agency with the responsibility of administering the Florida Medicaid Program pursuant to Section 409.902, Florida Statutes.

2. Petitioner, Rodolfo Alonso (Alonso), provided optical services to Medicaid recipients on behalf of the Agency pursuant to a Medicaid provider contract and Medicaid provider number 0864550100.

3. AHCA determined that Alonso had a felony criminal record. Alonso pled no contest to a felony charge of practicing optometry without a license. Adjudication was withheld, and Alonso was placed on probation.

4. On March 17, 1997, AHCA sent Alonso a letter stating that AHCA was denying Alonso's request to reenroll in the Florida Medicaid Program because of a criminal record of possession of narcotics. The March 17 letter was amended by a letter dated April 8, 1997, stating that the felony referenced was incorrect and the felony record related to carrying a concealed weapon and practicing optometry without a license.

5. Both the March 17 and the April 8 letters stated:

   Your Medicaid provider number, 086450100, will be canceled on April 16, 1997, pursuant to the terms of Section 409.907(9)(f) and your Medicaid Provider Agreement.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

7. The denial letter stated that AHCA was denying reenrollment and cancelling the Medicaid provider number pursuant to Section 409.907(9)(f), Florida Statutes (1996 Supp.), which provides:

   (9) The agency may deny enrollment in the Medicaid program to a provider if the provider, or any officer, director, agent, managing employee, or affiliated person, or any partner or shareholder having an ownership interest equal to 5 percent or greater in the provider if the provider is a corporation, partnership, or other business entity, has:

   * * *

   (f) Been convicted of any criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct;

   
   

8. Section 409.901, Florida Statutes, defines "convicted" as follows:

   1. finding of guilt, with or without an adjudication of guilt, in any federal or state trial court relating to charges brought by indictment or information, as a result of jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere, regardless of whether an appeal from judgment is pending.

9. Alonso has been convicted of a criminal offense, practicing optometry without a license. The issue becomes whether the offense relates to fraud, theft, embezzlement, breach of fiduciary duty or other financial misconduct. Practicing optometry without a license does not relate to any of the listed offenses.

10. AHCA contends that it can rely on Section 409.907(9)(g), Florida Statues, for denying enrollment. Section 409.907(9)(g) provides that an application may be denied for a conviction of crime punishable by imprisonment of a year or more and involving moral turpitude. The cited section was not given as a basis for denial of the application for reenrollment. AHCA did not seek to amend its denial letters to include Section 409.907(9)(g), Florida Statutes, as a basis for denial. Section 120.60, Florida Statutes, governs licensing procedures in general. Subsection (3) provides:

    (3) Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for a license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act.

    Having failed to put the applicant on notice that it was relying on Section 409.907(9)(g) as a ground for denial of Alonso's reenrollment in the Medicaid program, AHCA may not now claim Section 409.907(9)(g), Florida Statutes, as a reason for denial. If AHCA had specified in the denial letters that the application

    was being denied pursuant to Section 409.907(9)(g) because Alonso was convicted of a crime involving moral turpitude, the result would be the same. The offense of practicing optometry without a license is not a crime involving moral turpitude. See Pearl v.

    Florida Board of Real Estate, 394 So. 2d 189 (Fla. 3rd DCA 1981) for a general discussion of crimes involving moral turpitude.

11. Respondent claims that under the current provider agreement, it may terminate the agreement without cause.1 Section 409.907(2), Florida Statutes, provides, "Each provider agreement shall be effective for a stipulated period of time, shall be terminable by either party after reasonable notice, and shall be renewable by mutual agreement." Respondent's argument is irrelevant to the consideration of Alonso's application for reenrollment. This is not a termination of an existing contract but an application for reenrollment in the Medicaid program. Thus, termination provisions in the contract are not applicable. Should Respondent decide to terminate the existing contract, it should do so pursuant to the contract terms.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for reenrollment in the Medicaid program

DONE AND ENTERED this 2nd day of February, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1998.

ENDNOTE

1 The Medicaid Provider Agreement between Alonso and the Florida Medicaid Program contains the following provision:

This agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement upon five days notice in the event of fraud, abuse, or failure of the provider to comply with any or all of the provisions of this agreement.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Mark S. Thomas, Esquire

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Ernesto S. Medina, Esquire

550 Northwest 42nd Avenue, Suite 217 Miami, Florida 33126

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: 97-002365

Orders for Case No: 97-002365