STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRINIDAD FIGUERADE ROJAS, M.D., )

)

Petitioner, )

)

vs. ) Case No. 11-1089

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on

May 3, 2011, by video teleconference at sites in Port St. Lucie and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sean M. Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139

For Respondent: Morris Shelkofsky, Esquire

Assistant General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Respondent should refuse to renew Petitioner's medical license on the ground that Petitioner has been terminated for cause from the Florida Medicaid program, as Respondent has indicated it intends to do.

PRELIMINARY STATEMENT

On May 6, 2010, the Department of Health (Department) issued a Notice of Intent to Deny Renewal of Petitioner's medical license (May 6, 2010, Notice), the body of which read as

follows:

Under section 456.0635, Florida Statutes, a license to practice a health care profession may not be renewed under certain circumstances. The Florida Department of Health has reason to believe that you have been terminated for cause from the Florida Medicaid program under section 409.913, Florida Statutes.

WHEREFORE, the determination was made to DENY your eligibility to renew your license.

The May 6, 2010, Notice, which was mailed to Petitioner on May 11, 2010, was accompanied by a Notice of Right to Hearing, which advised Petitioner of her right to a hearing on the

intended action and further advised her that the intended action would "constitute[] final agency action if no request for a hearing [was] received on or before the 21st day after [Petitioner's] receipt of th[e] [N]otice."

On June 3, 2010, Petitioner, through counsel, filed a Petition for Formal Administrative Hearing, in which she asserted that "the Department's factual allegations, as set forth in the Notice of Intent to Deny Renewal, [were] incorrect, and there [was] no basis for the Department to not renew [her] license." The matter was referred to DOAH on March 1, 2011, for the assignment of an administrative law judge "to conduct a fact-finding hearing pursuant to Sec. 120.57(1), Florida Statutes, and to submit a Recommended Order to [the Department]."

Both Petitioner and the Department filed unilateral proposed prehearing stipulations, in which they, among other things, stated their respective positions. In her proposed prehearing stipulation, Petitioner argued that 1) the Department "is precluded from applying section 456.0635, Florida Statutes, as a basis to deprive [her] of her medical license because that law became effective after [she] was terminated from participation in the Florida Medicaid program"; and 2) in any event, "[n]o clear and convincing evidence exists to demonstrate [she] was terminated from [the] Medicaid [program] for cause." The Department, in its proposed prehearing stipulation, stated that it is merely "seeking to comply with the legislative mandate of section 465.0635, Florida Statutes, which requires

that Petitioner be denied renewal of her medical [license] based upon her being terminated from the Florida Medicaid program."

As noted above, the final hearing in this case was held on May 3, 2011. One witnesses, Horace Dozier, testified at the hearing. In addition to Mr. Dozier's testimony, 13 exhibits (Petitioner's Exhibits 1 through 11, and Respondent's Exhibits 1 and 2) were offered and received into evidence.

With input from the parties, the undersigned set the deadline for the filing of proposed recommended orders at ten days from the date of the filing of the hearing transcript with DOAH.

The hearing Transcript, consisting on one volume, was filed with DOAH on May 11, 2011. Both parties timely filed their Proposed Recommended Orders on Monday, May 23, 2011.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Petitioner is a Florida-licensed medical doctor seeking the renewal of her license.

2. She used to participate as a provider in the Florida Medicaid program.

3. On May 12, 2003, the Agency for Health Care Administration (AHCA) issued a Final Order in Audit No. CI 01- 1713-000, finding that Petitioner received Medicaid overpayments

   
   

   in the amount of $203,059.61, and ordering that she "refund forthwith [that sum] together with such statutory interest as is set forth in § 409.913(24)(b), Florida Statutes." On June 13, 2003, Petitioner filed a motion requesting that ACHA's May 8, 2003, Final Order, be set aside. AHCA denied the motion by Order dated November 18, 2003.

4. Not having received from Petitioner the monies she was ordered to pay, AHCA sent Petitioner a letter, dated May 30, 2008, advising her that it intended to fine her $5,000.00 for having failed to pay her "outstanding debt that [was] owed to [ACHA], related to a Medicaid overpayment"; that "[i]f payment [was] not received or arranged for, within 30 days of receipt of this letter, [AHCA] [might] withhold Medicaid payment"; and that "failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by [AHCA] [might] result in additional sanctions, which [could] include, but [would] not [necessarily be] limited to, fines, suspension, and termination from the Medicaid Program." AHCA's May 30, 2008, letter also contained a Notice of Administrative Hearing and Mediation Rights.

5. By letter dated August 13, 2008, AHCA advised Petitioner that it was "suspending [her] participation in the Medicaid program" due to her still having an "outstanding debt . . . owed to [AHCA]" and that "continued non-compliance

   
   

   [would] result in this suspension converting to termination from participation in the Medicaid program in accordance with Rule 59G-9.070, F.A.C." AHCA's August 13, 2008, letter also contained a Notice of Administrative Hearing and Mediation Rights.

6. On June 11, 2009, Horace Dozier, the Field Office Manager in AHCA's Office of the Inspector General, Medicaid Program Integrity, sent Petitioner a letter, which read as follows:

   Our records indicate that on August 13, 2008 the Agency for Health Care Administration (Agency) issued a final agency action letter imposing a sanction for an outstanding debt that is owed to the Agency. The letter further informed you that, in accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), continued non- compliance would result in termination from the Medicaid program. As such, the Agency is hereby terminating your participation in the Medicaid program. This includes any action that results in a claim for payment to the Medicaid program as a result of furnishing, supervising a person who is furnishing, or causing a person to furnish goods or services. This will take effect immediately.

   
   

   You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. If a request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201,

   F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C.

   
   

   Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights.

   
   

   Any questions you may have about this matter should be directed to: Horace Dozier, Field Office Manager, Agency for Health Care Administration, Medicaid Program

   Integrity . . . .

   
   

   The last paragraph of the "attached Notice of Administrative Hearing and Mediation Rights" to which Mr. Dozier referred in his letter read as follows:

   If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR [sic] shall be conclusive and final.

   
   

7. Notwithstanding the assertion made in the last sentence of the first paragraph of the body of Mr. Dozier's June 11, 2009, letter that "[t]his will take effect immediately," the determination to terminate Petitioner from the Medicaid program for nonpayment of an "outstanding debt . . . owed to [AHCA]" was treated by AHCA (appropriately, and consistent with the last paragraph of the "attached Notice of Administrative Hearing and Mediation Rights") as merely "intended action" that had not yet ripened into final agency action.

   
   

8. Petitioner requested an administrative hearing on this "intended action," but she subsequently, on or about

   November 12, 2009, withdrew her request by filing with ACHA a Withdrawal of Motion for Formal Hearing and Mediation.

9. On February 16, 2010, ACHA (through its Secretary) issued its Final Order terminating Petitioner from the Florida Medicaid program. The body of AHCA's Final Order provided as follows:

   THIS CAUSE is before me for issuance of a Final Order on a Final Agency Action Letter dated June 11, 2009 (C.I. # 087796000).

   
   

   By . . . Letter, the Agency for Health Care Administration ("AHCA" or "Agency") informed the Petitioner, Trinidad Rojas, M.D., (hereinafter "PROVIDER"), that the Agency was terminating the PROVIDER from the Medicaid Program pursuant to Section 409.913 and Rule 59G-9.070 for non-compliance of payment [of] an outstanding debt owed to the Agency for overpayments (Final Order Rendered May 12, 2003 and Final Order Rendered June 15, 2007) and a fine sanction of $5000.00.[2] The Letter provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest termination.

   
   

   The PROVIDER filed a petition with the Agency requesting an administrative hearing on July 13, 2009. This petition was dismissed without prejudice on July 16, 2009. On August 1, 2009, PROVIDER filed an amended petition, which was forwarded to the Division of Administrative Hearings ("DOAH") by the Agency on August 12, 2009.

   
   

   On November 12, 2009, PROVIDER filed a Withdrawal of Motion for Formal Hearing and

   
   

   Mediation with the Division of Administrative Hearings. Based on Petitioner's Withdrawal of Motion for Formal Hearing and Mediation, the ALJ issued an Order Closing File, cancelled the hearing scheduled for November 17, 2009, and relinquished jurisdiction to the Agency on November 13, 2009.

   
   

   FINDINGS OF FACT

   
   

   The PROVIDER received the June 11, 2009 Final Agency Action Letter that gave notice of PROVIDER'S right to an administrative hearing regarding the termination from the Medicaid Program. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be DISMISSED. PROVIDER chose not to dispute the facts set forth in the Final Agency Action Letter dated June 11, 2009. The facts alleged in the letter are hereby deemed admitted, including the termination from the Medicaid Program. The Agency hereby adopts the facts as set forth in the Final Agency Action Letter which terminates the PROVIDER from the Medicaid program.

   
   

   CONCLUSIONS OF LAW

   
   

   The Agency incorporates and adopts each and every statement and conclusion of law set forth in the Final Agency Action Letter dated June 11, 2009. The admitted facts support the legal conclusion that the PROVIDER is terminated from the Medicaid Program.

   
   

   ORDER

   
   

   Based on the foregoing, it is

   
   

   ORDERED AND ADJUDGED that Petitioner is hereby TERMINATED from the Medicaid Program.

   
   

   This was followed by a Notice of Right to Judicial Review and a Certificate of Service, signed February 18, 2010, by AHCA's Agency Clerk.

10. In its May 6, 2010, Notice, the Department has cited Petitioner's termination from the Florida Medicaid program, which was effectuated by AHCA's February 16, 2010, Final Order, as the reason it intends to deny the renewal of Petitioner's license to practice medicine.

    CONCLUSIONS OF LAW

    
    

11. The Department is a creature of statute, specifically section 20.43, Florida Statutes. As such, it has only that authority the Legislature has delegated to it, and it must exercise that delegated legislative authority within, and not stray beyond, the boundaries and parameters established by the Legislature. See Cape Coral v. GAC Utils., Inc., 281 So. 2d 493, 495-496 (Fla. 1973)("All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. This, of course, includes the Public Service Commission. As such, the Commission's powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State.")(citations omitted); Ocampo v. Dep't of Health, 806 So. 2d 633 (Fla. 1st DCA 2002)("An agency can only do what it is authorized to do by the Legislature."); Fla. Dep't of Ins. v. Bankers Ins. Co., 694

    
    

    So. 2d 70 (Fla. 1st DCA 1997)("In determining the extent of an agency's authority or jurisdiction, we start with the proposition that agencies are creatures of statute. Their legitimate regulatory realm is no more and no less than what the Legislature prescribes by law."); Schiffman v. Dep't of Prof'l Reg., Bd. of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative agency has only the authority that the legislature has conferred it by statute."); Gulfstream Park Racing Ass'n v. Dep't of Bus. Reg., Div. of Pari-Mutuel

    Wagering, 443 So. 2d 113, 117-118 (Fla. 3d DCA 1983)("Administrative agencies, such as the Division, being creatures of statute, have only such power as the statutes confer.")(citations omitted); and Gardinier, Inc. v. Fla. Dep't

    of Pollution Control, 300 So. 2d 75, 76 (Fla. 1st DCA 1974)("It has long been established law that a statutory agency possesses no inherent powers. Its powers are derivative only, depending upon the statute by which it is created. Its powers are limited to those granted, either expressly or by necessary implication, by the statute of its creation.").

12. In determining where the bounds of its statutory authority lie, the Department must strive to ascertain what the Legislature intended in this regard. See Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008)("A court's purpose in construing a statute is to give effect to legislative intent, which is the

    
    

    polestar that guides the court in statutory construction.") "Legislative intent must be derived primarily from the words expressed in the statute [in question]. If the language of the statute is clear and unambiguous," these words must be given effect. Florida Dep't of Rev. v. Fla. Mun. Power Agency, 789 So. 2d 320, 323 (Fla. 2001). Where there is such clarity and lack of ambiguity, "there is no reason to resort to rules of statutory construction."3 Gervais v. City of Melbourne, 890 So. 2d 412, 414 (Fla. 5th DCA 2004); see also State v. Jett, 626 So. 2d 691, 693 (Fla. 1993)("It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language."); Fla. Dep't of Children & Family Servs. v. P.

    E., 14 So. 3d 228, 234 (Fla. 2009)("Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.

    Where the statute's language is clear or unambiguous, courts need not employ principles of statutory construction to determine and effectuate legislative intent.")(citation omitted); and Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209, 213 (Fla. 2009)("When a statute's language is plain and unambiguous, there can be no resort to statutory construction.").

13. Regardless of the Department's views regarding the wisdom or legal propriety of the choices the Legislature has

    
    

    made in defining the scope of the Department's authority (as expressed in the statutory provisions the Legislature has enacted), the Department is obligated to respect, and act in accordance with, these legislative choices and to not ignore or disregard them. See Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 250 (Fla. 1987)("[I]t is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable."); State v. Bales, 343 So. 2d 9, 11 (Fla. 1977)("Questions as to wisdom, need or appropriateness [of a legislative enactment] are for the Legislature."); and Barr v. Watts, 70 So. 2d 347, 351 (Fla. 1953)("The people of this state have the right to expect that each and every such state agency will promptly carry out and put into effect the will of the people as expressed in the legislative acts of their duly elected representatives. The state's business cannot come to a stand-still while the validity of any particular statute is contested by the very board or agency charged with the responsibility of administering it and to whom the people must look for such administration.").

14. Among the powers the Legislature has delegated to the Department is the authority to issue licenses permitting physicians to practice medicine in the State of Florida, which licenses must be renewed every two years.4 §§ 456.004(1) and 458.319(2), Fla. Stat.

    
    

15. Through the enactment of section 456.0635(2)(b) (by section 24 of chapter 2009-223, Laws of Florida), the Legislature has made the choice (clearly expressed by the plain and unambiguous language of the statute) to limit the Department's exercise of this authority by prohibiting the Department, starting July 1, 2009,5 the effective date of the statute,6 from issuing an initial or renewal medical license to "any applicant . . . who has been: [t]erminated for cause from the Florida Medicaid program pursuant to s. 409.913,[7] unless the applicant has been in good standing with the Florida Medicaid program for the most recent 5 years."8 The Department must "refuse to issue or renew a license" sought by such an applicant.9 It is powerless to carve out any exception to section 456.0635(2)(b) and license a physician the Legislature, in that statutory provision, has made ineligible for licensure, however wise or just it might seem to the Department to take such action. See Cortes v. Bd. of Regents, 655 So. 2d 132, 136 (Fla. 1st DCA 1995)("The legislature may authorize administrative agencies to interpret, but never to alter statutes.")(citations omitted); and Commercial Coating v. Dep't

    of Envtl. Reg., 548 So. 2d 677, 679 (Fla. 3d DCA 1989)("Administrative agencies entrusted with authority to carry out statutory provisions are similarly prohibited from giving the statute an amendatory construction.").

    
    

16. The Legislature's use of the present perfect tense ("has been terminated") in section 456.0635(2)(b), unaccompanied by any temporal qualifier, clearly reveals that it intended that, to trigger section 456.0635(2)(b)'s mandatory prohibition, a termination need not have occurred at any particular time10 (such as on or after the effective date of section 456.0635(2)(b)).11 The termination merely must have been finalized sometime in the indefinite past. See Carr v. United States, 130 S. Ct. 2229, 2236 (2010)("That § 2250 sets forth the travel requirement in the present tense ('travels') rather than in the past or present perfect (traveled' or 'has traveled') reinforces the conclusion that preenactment travel falls outside the statute's compass. Consistent with normal usage, we have frequently looked to Congress' choice of verb tense to ascertain a statute's temporal reach."); United States v. Agnes, 453 F. Supp. 1256, 1259 (E.D. Pa. 1978)("[T]he language of the statute suggests by using the present perfect tense ('has been shipped or transported') that Congress intended § 922(h) to apply to interstate commerce which has occurred at some indefinite time in the past."); Cawley v. Cawley, 139 Colo. 439, 441-442 (Colo. 1959)("The clause, 'when a divorce has been granted,' is in the passive voice, present perfect tense. It is descriptive of past action. When an act has been done, we refer to something that has occurred. Grammatically the present perfect tense signifies

    
    

    that the action is perfected or completed."); State v. Owen, 216 S.W.3d 227, 229 (Mo. Ct. App. 2007)("We agree with the Director that the words 'has been issued' should be read together and are in the present perfect tense. Once the issuing has occurred, there is no other statutory requirement to make the person ineligible for expungement. A person of plain and ordinary intelligence would understand the phrase 'any individual who has been issued a commercial driver's license' to mean simply any individual who, at some point, has had a commercial driver's license issued to him."); and Burdge v. Palmateer, 338 Ore. 490,

    498 n. 5 (Or. 2005)("'Has been convicted' is present perfect tense, indicating that the earlier conviction may have taken place at any time before the present--the present being the time of sentencing for the later conviction ").

17. That being said, not every termination from the Florida Medicaid program is fatal, under section 456.0635(2)(b), to the Department's ability to exercise its licensure authority. Only those terminations that are "for cause . . . pursuant to s. 409.913" can have such a lethal consequence. A termination is "for cause" if it is "based on some fault or shortcoming of the person being [terminated]." In re Brookover, 352 F.3d 1083, 1087 (6th Cir. 2003). A physician who has been terminated from the Florida Medicaid program pursuant to section 409.913(30) for having "fail[ed] to reimburse an overpayment that has been

    
    

    determined by [AHCA] final order" (as has Petitioner12) has been terminated "for cause . . . pursuant to s. 409.913" and, consequently, is not a physician to whom the Department may grant any type of medical license, unless the physician has been reinstated to the program and "been in good standing . . . for the most recent 5 years."

18. If the Department is presented with an application for the renewal of a medical license that it believes it is without authority to grant because the application is from a section 456.0635(2)(b)-disqualified physician, the Department must, before taking final action on the application, comply with the notice requirements of section 120.60(3), which provides, in pertinent part, as follows:

    Each applicant shall be given written notice, personally or by mail that the agency intends to . . . deny . . . the application for license. The notice must state with particularity the grounds or basis for . . . denial of the

    license . . . . Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has made a written request for notice of agency action. Each notice must inform the recipient of the basis for the agency decision, inform the recipient of any administrative hearing pursuant to ss.

    120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, indicate the procedure that must be followed, and state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered,

    
    

    and the notice and the certification must be filed with the agency clerk.

    
    

19. At any administrative hearing held on the matter, the Department bears the burden of proving that the applicant "has been: [t]erminated for cause from the Florida Medicaid program pursuant to s. 409.913." See Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.'"); and Fla. Dep't of HRS v. Career Serv. Comm'n,

    289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'") Once the Department makes such a showing, the burden shifts to the applicant to demonstrate that he or she has been reinstated to the Florida Medicaid program and "has been in good standing . . . for the most recent 5 years." See State v. Hicks, 421 So. 2d 510, 511 (Fla. 1982)("We find that as used in section 810.02(1), the word 'unless' is a qualifier to the primary sentence of the statute, separating the consent phrase from the enacting clause and making consent an affirmative defense."); Baeumel v. State, 7 So. 371, 372 (Fla. 1890)("[I]f there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause,

    
    

    or a subsequent statute, that is [a] matter of defen[s]e, and is to be shown by the other party.")(internal quotations omitted); Royal v. State, 784 So. 2d 1210, 1211 (Fla. 5th DCA 2001)("It has long been the rule that if there is an exception in an enacting clause, the party pleading must show that his adversary is not within the exception. If the exception is found in a subsequent clause or statute, however, it is a matter of defense.")(citations omitted); and D. R. v. State, 734 So. 2d 455, 459 (Fla. 1st DCA 1999)("In subsection (1) of the burglary statute, the term 'unless' qualifies the primary sentence and separates the consent provision from the enacting clause.

    Consent to enter is an affirmative defense to burglary.").

    
    

20. In the instant case, the Department provided Petitioner with the notice required by section 120.60(3) (advising her of its intent to deny the renewal of her medical license pursuant to section 456.0635), and an administrative hearing on the agency action proposed in the Department's notice was held, at Petitioner's request. At the hearing, the Department proved by clear and convincing evidence13 that Petitioner was "[t]erminated for cause from the Florida Medicaid program pursuant to s. 409.913" (specifically subsection (30) thereof)14 by AHCA Final Order issued February 16, 2010,15 a showing which absolutely negates the possibility that she "has been in good standing with the Florida Medicaid program for the

    
    

    most recent 5 years" (since this termination occurred less than five years ago) and therefore establishes that the Department is statutorily barred, pursuant to the clear directive issued by the Legislature in section 456.0635(2)(b), from renewing her medical license.

21. The Department has no lawful option but to follow this clear legislative directive and refuse to renew Petitioner's medical license on the ground that she "has been "[t]erminated for cause from the Florida Medicaid program pursuant to s. 409.913," within the meaning of section 456.0635(2)(b).16

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that a final order be issued refusing to renew Petitioner's medical license.

DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011.

ENDNOTES

1 Unless otherwise noted, all references by the undersigned in this Recommended Order to Florida Statutes are to Florida Statutes (2010).

2 As of the date of the final hearing in the instant case, AHCA had not yet received any monies from Petitioner to pay off this "outstanding debt."

3 While "[i]t is a fundamental rule of statutory construction that, if at all possible, a statute should be construed to be constitutional," (Caple v. Tuttle's Design-Build, 753 So. 2d 49,

51 (Fla. 2000)), an agency is "without power to construe an unambiguous statute in a way which would extend, modify, or limit [the statute's] express terms or its reasonable and obvious implications [even if the agency believes that such a construction is necessary to cure a perceived constitutional defect]. To do so would be an abrogation of legislative power." Am. Bankers Life Assurance Co. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968).

4 It has been said that,"[i]n Florida, the license to practice medicine is considered a privilege granted by the sovereign,"

and it "may be withdrawn to 'preserve the public health, morals, comfort, safety and the good order of society.'" Borrego v. Ag. for Health Care Admin., 675 So. 2d 666, 668 (Fla. 1st DCA 1996).

5 Another statutory provision which became effective July 1, 2009, section 456.072(1)(kk), allows, but does not require, the Board of Medicine to take disciplinary action (as described in section 456.072(2)) against a licensed physician (outside the license renewal process) for "being terminated from the state Medicaid program pursuant to s. 409.913"; under section 456.072(1)(kk), unlike under section 456.0635(2)(b), restoration of the physician's "eligibility to participate in the [Florida Medicaid] program" is an absolute defense, regardless of whether the physician "has been in good standing with the Florida Medicaid program for the most recent 5 years."

6 Section 74 of chapter 2009-223 provided: "This act shall take effect July 1, 2009." Accordingly, on July 1, 2009, section 456.0635(2)(b) immediately became applicable, not only to those applications for medical licensure thereafter filed, but also to applications that were pending (that is, not finally disposed of by the Department) as of that date. See Ag. for Health Care Admin. v. Mount Sinai Med. Ctr., 690 So. 2d 689, 691 (Fla. 1st DCA 1997)("The agency must apply the law in effect at the time it makes its final decision. No final decision has yet been rendered in the instant proceedings. Where there is a change in law in a licensure matter, the law at the time of the decision, rather than when the application was filed, determines whether the license should be granted.")(citation omitted); and Lavernia v. Dep't of Prof'l Reg., Bd. of Medicine, 616 So. 2d 53, 54 (Fla. 1st DCA 1993)("[A] change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted.").

7 Under section 456.0635(2)(b), it is the termination, not the conduct underlying the termination, that triggers the statute's mandatory prohibition.

8 Section 456.0635 reads, in its entirety, as follows:

1. Medicaid fraud in the practice of a health care profession is prohibited.

   
   

2. Each board within the jurisdiction of

   
   

   the department, or the department if there is no board, shall refuse to admit a candidate to any examination and refuse to issue or renew a license, certificate, or registration to any applicant if the candidate or applicant or any principal, officer, agent, managing employee, or affiliated person of the applicant, has been:

   
   

   1. Convicted of, or entered a plea of guilty or nolo contendere to, regardless of adjudication, a felony under chapter 409, chapter 817, chapter 893, 21 U.S.C. ss. 801- 970, or 42 U.S.C. ss. 1395-1396, unless the sentence and any subsequent period of probation for such conviction or pleas ended more than 15 years prior to the date of the application;

      
      

   2. Terminated for cause from the Florida Medicaid program pursuant to s. 409.913, unless the applicant has been in good standing with the Florida Medicaid program for the most recent 5 years;

      
      

   3. Terminated for cause, pursuant to the appeals procedures established by the state or Federal Government, from any other state Medicaid program or the federal Medicare program, unless the applicant has been in good standing with a state Medicaid program or the federal Medicare program for the most recent 5 years and the termination occurred at least 20 years prior to the date of the application.

   
   

3. Licensed health care practitioners shall report allegations of Medicaid fraud to the department, regardless of the practice setting in which the alleged Medicaid fraud occurred.

   
   

4. The acceptance by a licensing authority of a candidate's relinquishment of a license

which is offered in response to or anticipation of the filing of administrative charges alleging Medicaid fraud or similar charges constitutes the permanent revocation of the license.

Serving, as it does, to protect the public by making ineligible for licensure those deemed by the Legislature to be unfit to receive such a privilege, section 465.0635 is regulatory or remedial, not punitive, in nature. See Lescher v. Fla. Dep't of High. Saf. & Motor Veh., 985 So. 2d 1078, 1084 (Fla.

2008)("Historically, therefore, Florida courts have held that a licensed privilege may reasonably be regulated. The purpose of suspension or revocation of such a privilege is not to punish the offender, but to protect the public."); Rowe v. Ag. for Health Care Admin., 714 So. 2d 1108, 1110 (Fla. 5th DCA 1998)("The prohibition against ex post facto laws applies only to penal legislation and not to laws, such as subsection 409.907(9)(f), which are regulatory in nature, enacted solely for the purpose of protecting the public from medical providers who have been adjudicated guilty of crimes of dishonesty.

Importantly, the amendments to subsection 409.907(9)(f) [which were made after Rowe's 1995 convictions] did not increase the penalty imposed upon Rowe for his crimes, but instead, simply limited his privilege to participate in the state's Medicaid program. Therefore, the constitutional prohibition against ex post facto laws was not implicated here where the twenty-year exclusion [from participating in the Florida Medicaid program] was regulatory, not punitive.")(citations omitted); State v.

Bowling, 712 So. 2d 798, 800 (Fla. 2d DCA 1998)("It has long been recognized that the revocation of such a license is typically free of punitive criminal intent. The purpose of such a revocation is to protect the public from risk of future harm by the license holder.")(citation omitted); and Borrego, 675 So. 2d at 668 ("[S]ection 458.301, Florida Statutes (1993), provides that the purpose for enacting chapter 458, which contains the disciplinary statute at issue, is to protect the public from practitioners who cannot comply with 'minimum requirements for safe practice.' Based on the above authorities, we conclude that section 458.331 was designed to serve the public welfare, and, because the sanction imposed against Dr. Borrego for its violation was remedial rather than punitive, it did not violate the prohibition against double jeopardy."); see also Smith v.

Doe, 538 U.S. 84, 100 (2003)("The Act's obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive."); Hawker v. New York, 170 U.S.

189, 192-194 (1898)("No precise limits have been placed upon the police power of a State, and yet it is clear that legislation which simply defines the qualifications of one who attempts to practi[c]e medicine is a proper exercise of that power. Care for the public health is something confessedly belonging to the domain of that power. The physician is one whose relations to life and health are of the most intimate character. It is fitting not merely that he should possess a knowledge of diseases and their remedies, but also that he should be one who may safely be trusted to apply those remedies. Character is as important a qualification as knowledge, and if the legislature may properly require a definite course of instruction, or a certain examination as to learning, it may with equal propriety prescribe what evidence of good character shall be furnished."); Manocchio v. Sullivan, 768 F. Supp. 814, 817 (S.D. Fla. 1991) ("Disqualifying a person from participating in a social program or practicing a profession because of offensive activity is not punishment, if the past activity is such that the public would have an interest in excluding the offender."); and Childs v.

McCord, 420 F. Supp. 428, 435 (D. Md. 1976)("Whether the disclosures made by plaintiffs in their compelled testimony amount to professional misconduct is for the Board, not this Court, to decide. If it finds such misconduct, the Board has no authority to imprison a plaintiff, to fine him or to impose any other criminal sanction. Rather than enforcing a criminal statute, the Board if it acts will be exercising the power of the State to protect its citizenry from fraud and deception and will be endeavoring to preserve public confidence in the integrity of the engineering profession. Any revocation order by the Board would thus be remedial rather than punitive in nature.").

9 Inasmuch as the Department, before renewing a physician's medical license, must first determine whether the physician has suffered a termination "for cause from the Florida Medicaid program pursuant to s. 409.913" that would, under section 456.0635(2)(b), bar such renewal, it cannot be said that the Department's renewal of a medical license is a mandatory, "ministerial duty." Contrast with Vocelle v. Riddell, 119 So. 2d 809, 811 (Fla. 2d DCA 1960)(held that "once an applicant becomes licensed, the annual renewal of his license follows as a ministerial duty of the Commission and a matter of right; and that if violations occur the Commission is required to resort to the provisions for revocation," where statute governing license renewal provided: "License for the next succeeding year shall be issued upon written request on the form prescribed by the

commission and it shall be accompanied by the required fee. When made in proper form such request shall not be denied or unreasonably delayed."). Petitioner's reliance on Florida

Administrative Code Rule 64B-13.001 (a rule adopted by the Board of Medicine, which sets forth "[c]riteria for [l]icense [r]enewal") to persuade the undersigned to conclude otherwise is misplaced. Rule 64B-13.001 has not been revised since May 14, 1998, more than 11 years before the effective date of section 456.0635(2)(b), and it provides as follows:

64B8-13.001 Criteria for License Renewal.

An active license shall be renewed upon the demonstration that the applicant:

1. Has completed and filed the forms provided by the Department for the renewal of license and paid the applicable fees.

   
   

2. Has complied with the continuing education requirements of Section 456.013(6), F.S., and Rule 64B8-13.005, F.A.C.

   
   

3. Has complied with the financial responsibility requirements of Section 458.320, F.S., and Rule Chapter 64B8-12, F.A.C.

   
   

4. Has accounted for any activities related to the practice of medicine in this or any other jurisdiction within the previous 4 years.

   
   

5. Has actively practiced medicine or has been on the active teaching faculty of an accredited medical school for at least 2 years of the immediately preceding 4 years; alternatively, the licensee must successfully complete the Special Purpose Examination of the Federation of State Medical Boards of the United States (SPEX) prior to renewal of the license. "Actively practiced medicine" means that practice of medicine by physicians, including those employed by any governmental entity in

community or public health, as defined in Chapter 458, F.S., including physicians practicing administrative medicine.

To the extent that rule 64B-13.001 authorizes the issuance of a renewal license regardless of whether the applicant, within the most recent past five years, "has been: [t]erminated for cause from the Florida Medicaid program pursuant to s. 409.913," it is in conflict with, and therefore must give way to, section 456.0635(2)(b). See Nicholas v. Wainwright, 152 So. 2d 458, 460 (Fla. 1963)("When such conflicts [between statutes and agency rules] appear, the Act of the Legislature must control."); Wade v. Dep't of Child. & Fams., 57 So. 3d 869 (Fla. 1st DCA 2011)("To the extent that the Department rules purport to make the hearing officer's decision final agency action in RTI cases, the rules conflict with and must give way to the statute."); McLaughlin v. Dep't of High. Saf. & Motor Veh., 2 So. 3d 988, 992 (Fla. 2d DCA 2008)("[A] statute governs when there is conflict between a statute and an administrative regulation on the same subject."); Dep't of Rev. v. A. Duda & Sons, 608 So. 2d 881, 884 (Fla. 5th DCA 1992)("A regulation is operative and binding from its effective date 'until it is modified or superseded by subsequent legislation . . . .'"); and Canal Ins. Co. v. Cont'l Cas. Co., 489 So. 2d 136, 138 (Fla. 2d DCA 1986)("When any conflict exists between the statute and the regulation, the statute, of course, controls.").

10 Termination from the Florida Medicaid program is a discrete, non-continuing act that occurs at a particular point in time-- when it becomes final agency action. Cf. Alers v. N.Y. City Human Res. Admin., Case No. 06-CV-6131, 2008 U.S. Dist. LEXIS 72949 *15 (E.D. N.Y. Sept. 24, 2008)("A discrete act occurs at one particular time, such as a termination ").

11 Had the Legislature intended to limit the reach of section 456.0635(2)(b) to only post-enactment terminations, it surely would have added to the statute (in an appropriate place) the qualifier "on or after the effective date of this act", or used similar limiting language to convey that intent, as it has done elsewhere in Florida Statutes, such as in section 633.025(5)("The new building or structure provisions enumerated within the firesafety code adopted pursuant to this section shall apply only to buildings or structures for which the building permit is issued on or after the effective date of this act.") and section 856.022(4)(a)("This paragraph applies only to a person described in subsection (1) whose offense was committed

on or after May 26, 2010."), to cite just a couple of examples. See Cason v. Fla. Dep't of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006)("In the past, we have pointed to language in other statutes to show that the Legislature 'knows how to' accomplish what it has omitted in the statute in question. Section

95.011 shows that had the Legislature chosen to make the State subject to the sixty-day filing requirement in section 194.171(2), it knew how to do so."). To read such a temporal limitation into section 456.0635(2)(b) in the absence of statutory language justifying such a reading would require the Department to rewrite the statute, which is something it cannot do. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999)("We are not at liberty to add words to statutes that were not placed there by the Legislature."); State v. King, 282 So. 2d 162, 167 (Fla. 1973)("The Florida Statute of Limitations, like the federal one involved in Toussie, is completely silent on a concept of a continuing, discoverable offense. To create such an exception to the Statute of Limitations is to rewrite a plain and unambiguous statute. If this is a 'loophole' that should be closed, we must turn to the legislature to do so."); Brown v. Nationscredit Fin. Servs. Corp., 32 So. 3d 661, 665 (Fla. 1st DCA 2010)("Here, because the Legislature did not choose to include words limiting the statute to creditors, we cannot add this language."); Beasley Broad. v. Dep't of State, Div. of Licensing, 693 So. 2d 668, 670 (Fla. 2d DCA 1997)("[N]either the Division nor this court can add language to this unambiguous statute."); and Gulf Coast Hosp. v. Dep't of HRS, 424 So. 2d 86,

91 (Fla. 1st DCA 1982)("Even were it otherwise and the agency's predictions of an osteopathic explosion correct, HRS would not be empowered to rewrite and administratively repeal the legislation in question. Arguments concerning the potential effect of the legislation or questioning the wisdom of such legislation are matters which should be presented to the Legislature itself.").

12 Since July 1, 2009, section 409.913(30) has provided as follows:

The agency shall terminate a provider's participation in the Medicaid program if the provider fails to reimburse an overpayment that has been determined by final order, not subject to further appeal, within 35 days after the date of the final order, unless the provider and the agency have entered into a repayment agreement.

The version of section 409.913(30) that was in effect on June 11, 2009, the date of Mr. Dozier's letter to Petitioner, read the same except that the word "may" was used instead of "shall."

13 The question of whether the Department could have met its evidentiary burden in this license renewal case with evidence that merely met the preponderance of the evidence standard is an academic one that need not be answered, given that the Department's proof of Petitioner's ineligibility for license renewal met the more rigorous clear and convincing standard. See Kingsley v. Kingsley, 623 So. 2d 780, 786 (Fla. 5th DCA 1993)("[T]he clear and convincing evidence standard is a higher standard of proof than that of the preponderance of the evidence ").

14 That neither AHCA's February 16, 2010, Final Order, nor its earlier notice of proposed agency action (Mr. Dozier's June 11, 2009, letter to Petitioner), contained the actual words "for cause" does not mean that Petitioner's termination from the Florida Medicaid program cannot be characterized as a termination "for cause." Cf. Underwood v. Underwood, 64 So. 2d 281, 288 (Fla. 1953)("At the very outset we dispose of the legal effect of the use of the word 'alimony' in the agreement and decree. It is not what it is called but what it is that fixes its legal status. It is the substance and not the form which is controlling."); State v. Townsend, 40 So. 3d 103, 105 (Fla. 2d DCA 2010) ("[I]t is the nature of the search, not the label the officer places upon it, that controls."); and Boca Raton Artificial Kidney Ctr., Inc. v. Dep't of HRS, 475 So. 2d 260, 261-262 (Fla. 1st DCA 1985)("Although the CON in question does not so state, it represents preliminary agency action. That the actual certificate fails to state that it is a 'notice of intent to issue CON' or that it is 'subject to administrative review' does not change the character of the certificate as preliminary agency action.").

15 Contrary to the assertion made by Petitioner, she was not terminated from the Florida Medicaid program on June 11, 2009, the date of Mr. Dozier's letter. That letter merely constituted proposed, not final, agency action. See Silver Show v. Department of Bus. & Prof'l Reg., Div. of Alcoholic Beverages and Tobacco, 706 So. 2d 386, 388 (Fla. 4th DCA 1998)("The precise formulation used by the Division in its Notice of Disapproval (which, we note, did not use the term denied to describe its decision, saying instead that the applications were

"disapproved"), and the notification of the right to request a formal hearing under sections 120.569 and 120.57, imply that the agency's action was merely proposed action--i.e., that the Division 'intends to . . . deny . . . the application for license . . . .' By its very nature, an intent to deny an application for a license does not logically represent the actual denial. Something more formal is contemplated [than] the mere intent to do an act.")(citation omitted); Florida League of Cities, Inc. v. Admin. Comm'n, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person."); Beverly Enters.-Florida, Inc. v. Dep't of HRS, 573 So. 2d 19, 23 (Fla. 1st DCA 1990)("A request for a formal administrative hearing commences a de novo proceeding intended to formulate agency action, and not to review action taken earlier or preliminarily."); Boca Raton Artificial Kidney Ctr.,

475 So. 2d at 261-262; Capeletti Bros., Inc. v. Dep't of Gen. Servs., 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the purpose of the [section] 120.57 hearing. The rejection of bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."); Nelson v. Dep't of Agric. & Consumer Servs., 424 So. 2d 860, 862 (Fla. 1st DCA 1982)("[A]n agency's free-form action refusing an employee authorization for a candidacy is, with APA remedies timely requested and as yet unfulfilled, no agency action at all."); and Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778, 786 (Fla. 1st DCA 1981)("[T]he proceeding leading up to the issuance of DER's notice of intent is of the type that has been characterized as 'free-form' action, and as such the decision produced is merely 'preliminary.'"). Even if Petitioner were correct about the date of her termination, however, the Department would still have to refuse to renew her medical license because, as explained above, section 456.0635(2)(b) makes no distinction between preenactment and post-enactment terminations--they both fall within section 456.0635(2)(b)'s prohibitory reach.

16 Petitioner could have avoided this termination and the non- renewal of her medical license that section 456.0635(2)(b) mandates must follow had she, prior to the entry of AHCA's Final Order on February 16, 2010 (which was approximately seven and a half months after the effective date of section 456.0635(2)(b)), entered into a "repayment agreement" with AHCA.

COPIES FURNISHED:

Sean M. Ellsworth, Esquire Ellsworth Law Firm, P.A.

1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139

Morris Shelkofsky, Esquire Assistant General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

H. Frank Farmer, M.D., Ph.D., Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703

E. Renee Alsobrook, Esquire Acting General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

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: 11-001089

Orders for Case No: 11-001089