STATE OF FLORIDA

DIVISION OF ADMINISTATIVE HEARINGS

PATRICK KEEGAN, M.D., )

)

Petitioner, )

)

vs ) CASE NO. 88-4758

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a telephonic hearing on Respondent's Motion to Dismiss was held in this case before DIANE CLEAVINGER, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 29, 1989. The parties were represented as follows:

For Petitioner: Karen 0. Emmanuel

Emmanuel, Sheppard and Condon

30 South Spring Street Post Office Drawer 1271 Pensacola, Floiida 32596

For Respondent: Carl B. Morstadt

Chief Counsel of Medicaid 1317 Winewood Boulevard

Building 6, Room 233

Tallahassee, Florida 32399-0700 FINDINGS OF FACT

1. By letter dated July 11, 1988 Respondent advised Petitioner that it had determined that the Department had overpaid Medicaid reimbursements to petitioner in the amount of $1,791.36. The letter clearly advised the Petitioner that the above determination was final agency action and advised the Dr. of his right to ask for an administrative hearing within 30 days from the date of the letter. The letter afforded the Petitioner a clear point of entry to the administrative process. The fact that other settlement proceedings may have been going on while the 30 day time period was running is irrelevant since such negotiations do not toll the 30 day time period during which a hearing may be requested.

   
   

2. Petitioner's agent signed the return receipt for delivery of the July 11, 1988, letter. Such delivery constitutes receipt of the letter by Petitioner.

   
   

3. Petitioner's 30 days during which he could request a hearing expired on August 15, 1988.

4. On August 17, 1988, HRS informed Petitioner by letter that it would reduce the amount of the overpayment to $1,140.27. This letter was not agency action adverse to Petitioner and did not re-start the 30 day time period which had previously expired.

   
   

5. No evidence was submitted by Petitioner which demonstrated that the 30 day time period did not run on August 15, 1988.

   
   

6. Petitioner filed his Petition for an Administrative Hearing on September 16, 1988.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has risdiction over the parties to and the subject matter of this proceeding. Sect. 120.57(1), Florida Statutes.

   
   

8. Rule 10-2.036, Florida Administrative Code, states in pertinent part:

   
   

   . . . Failure to timely request a hearing shall be deemed a waiver of any right to a Section 120.57,

   F.S. hearing and said decision shall become final agency action.

   
   

9. The time period an agency affords a party to request an administrative hearing is jurisdictional. Woodard v. Florida State University, 518 So.2d 336 (Fla. 1st DCA 1987). In this case Petitioner's Petition for an administrative hearing was over 3O days late, and therefore, must be dismissed as untimely.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing the Petition

for Administrative Hearing filed in this proceeding.

DONE and ENTERED this 26th day of April, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1989.

COPIES FURNISHED:

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Karen 0. Emmanuel

Emmanuel, Sheppard and Condon

30 South Spring Street Pensacola, Florida 32596

Carl B. Morstadt

Chief Counsel of Medicaid 1317 Winewood Boulevard

Building 6, Room 233

Tallahassee, Florida 32399-0700

Docket for Case No: 88-004758

Orders for Case No: 88-004758