STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGED SAMAAN, BETTER MEDICAL CARE,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 07-1490MPI

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RECOMMENDED ORDER OF DISMISSAL

Pursuant to Notice, a hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings (DOAH), on June 14, 2007, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: David W. Nam, Esquire

Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308 PRELIMINARY STATEMENT

On February 10, 2006, a Final Audit Report was issued by Respondent seeking reimbursement for alleged overpayments from the Medicaid program. Petitioner denied the allegations, and following an Order of Dismissal Without Prejudice, filed a

proper request for a formal hearing, under Subsection 120.57(1), Florida Statutes (2006). Thereafter, this matter was referred to DOAH on April 26, 2007, and a formal hearing was scheduled.

Petitioner had been represented before the agency by Michael Joseph, who identified himself as the authorized representative of Petitioner. Prior to the time of the scheduled hearing, the parties requested that the hearing be cancelled and the case dismissed, without prejudice. The parties sought time to review documents and reach a settlement. An Order Closing File was entered on May 5, 2006. The Order provided for either party to seek to re-open the case before DOAH should settlement of the case not be accomplished.

On March 30, 2007, Respondent filed a Motion to Re-Open Proceedings before DOAH. The motion was granted, a new case number was assigned by the Clerk of DOAH, and the Initial Order was mailed to Petitioner and Respondent on April 3, 2007, at the addresses provided. Petitioner and Respondent provided separate responses, on April 16 and April 11, 2007, respectively. The formal hearing was thereafter scheduled in Tallahassee, at a location convenient to Respondent, pursuant to Subsection 409.913(28), Florida Statutes, and at a time convenient to Petitioner. Petitioner in this matter was notified of the scheduling of the formal hearing in accordance with Subsection 120.57(1), Florida Statutes, at the address furnished by him.

In addition, an Order of Pre-Hearing Instructions was issued at the same time as the Notice of Hearing.

Thereafter, Respondent sought discovery from Petitioner, no responses were forth coming. Prior to the formal hearing, Petitioner made no effort to comply with the Order of Pre- hearing Instructions, although requested to do so by Respondent. Further, Subsection 409.913(22), Florida Statutes, requires that all documentation that will be offered as evidence at an administrative hearing on a Medicaid overpayment must be exchanged by all parties at least 14 days before the administrative hearing or it must be excluded from consideration. Respondent filed its Notice of Compliance with the statute on May 30, 2007. Petitioner failed to comply.

Respondent filed its unilateral Pre-Hearing Statement on

June 13, 2007. Respondent, also, requested that the start time to convene the formal hearing be delayed until 1:30 p.m. on the same date as scheduled. The motion was granted and all parties were notified.

In accordance with the Notice of Hearing, the final hearing was convened at the designated location for the hearing: Division of Administrative Hearings, Hearing Room 5, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, at 1:00 p.m., June 14, 2007. Neither Petitioner, nor his representative, appeared. Shortly before the hearing was

scheduled to commence, the Clerk of DOAH received a fax transmittal from a person claiming to be Dr. Samaan, which appeared to be a request for continuance of the hearing. This request was not in proper form (Florida Administrative Code Rule 28-106.204) and was not timely filed (Florida Administrative Code Rule 28-106.210), and there was no showing of an emergency. Also, filed the same day by Petitioner was a "Request for Qualification of Representative" [sic]. Said request was not timely and did not comply with Florida Administrative Code Rule 28-106.106. Diligent search and inquiry was made to discover the current whereabouts of Petitioner; but he could not be located. Respondent was present and was ready to proceed. At 2:15 p.m., when Petitioner had not appeared, Respondent renewed its ore tenus Motion to Dismiss with Prejudice the Petitioner's Request for a Formal Hearing. Respondent moved to dismiss on the grounds that Petitioner failed to comply with the Order of Pre-Hearing Instructions issued by the undersigned Administrative Law Judge and Subsection 409.913(22), Florida Statutes, and, further, Petitioner, who has the burden of proof and the burden of going forward with the evidence, by not appearing for the hearing has withdrawn his request for a formal hearing and has voluntarily abandoned his request for any relief at issue in this proceeding. Petitioner's Motion to Continue was denied by separate Order, and his request to be represented

by a qualified representative was also denied by separate Order. Respondent's ore tenus motion to dismiss is hereby granted.

ORDER AND RECOMMENDATION

Based on the forgoing, it is

ORDERED that the DOAH case file in this matter be closed, and jurisdiction is relinquished to Respondent. It is

RECOMMENDED that a final order be entered dismissing the petition and adopting the Final Audit Report, dated February 10, 2006, as final.

DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 22nd day of June, 2007.

COPIES FURNISHED:

David W. Nam, Esquire

Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Michael Joseph

Better Medical Care, Inc.

4185 West Lake Mary Boulevard, No. 199 Lake Mary, Florida 32746

Maged Samaan, M.D. Better Medical Care, Inc.

4185 West Lake Mary Boulevard, No. 199 Lake Mary, Florida 32746

Maged Samaan, M.D. Advanced Medical Care 734 Elkcam Boulevard

Deltona, Florida 32725

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Craig Smith, General Counsel

Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building III, Suite 3116 2727 Mahan Drive

Tallahassee, Florida 32308

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: 07-001490MPI

Orders for Case No: 07-001490MPI