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STATE OF FLORIDA :\; fC.:\

AGENCY FOR HEALTH CARE ADMINISTRATION: ,: ,::. ii y c:_::rm

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

V.

KENNETH HARDEN d/b/a KEN CARE,

INC.,

20!3 APPi 25 ,'4 10: 52

DOAH CASE NOS. 12-2868MPI

12-2869MPI AUDIT NOS. C.I. 12-0219-000

C.I. 12-0220-000

RENDITION NO.: AHCA-L$- -?c;cJ -FOF-MDO

Respondent.

                                                                I

FINAL ORDER

This case was referred to the Division of Administrative Hearings (DOAH) where the assigned Administrative Law Judge (ALJ), Suzanne Van Wyk, issued a Recommended Order after conducting a formal hearing. At issue in this proceeding is whether Respondent was overpaid by the Medicaid Program; and, if so, whether sanctions and costs should be imposed as well. The Recommended Order dated March 20, 2013, is attached to this Final Order and incorporated herein by reference.

RULING ON EXCEPTIONS

The Respondent filed exceptions to the Recommended Order1, and the Petitioner filed a response to Respondent's exceptions.

Respondent's "exceptions" do not comply with the requirements of§ 120.57(1)(k), Fla. Stat., and Rule 28-106.217(1), Florida Administrative Code, because they do not identify the disputed portion of the recommended order by page number or paragraph or include any appropriate and specific citations to the record. Therefore, the Agency need not rule on them.

1 Respondent filed both exceptions and amended exceptions (which shall be collectively referred to as "exceptions" in this Final Order) simultaneously with the Agency Clerk after the expiration of the 15-day time period for such filing. Nevertheless, the Agency will address them.

Filed April 25, 2013 12:18 PM Division of Administrative Hearings

Alternatively, the Agency does not have jurisdiction to address the constitutional issues

raised by Respondent in its "exceptions." In Florida Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 849 (Fla. 1st DCA 2002), the Court held that "[a]dministrative agencies lack the

power to consider or determine constitutional issues," citing the cases of Carrollwood State Bank

v. Lewis, 362 So. 2d 110, 113-14 (Fla. 1st DCA 1978) (holding that the administrative process

cannot resolve a constitutional attack on a statute, rule or regulation); and Gulf Pines Mem'l

Park, Inc. v. Oaklawn Mem'l Park, Inc., 361 So. 2d 695,699 (Fla. 1978) (holding that a party is not required to argue the facial constitutionality of a statute before the administrative agency because the agency lacks the power to declare a statute unconstitutional). Thus, the Agency must deny Respondent's exceptions to the Recommended Order.

AHCA notes that it has a legal duty to conduct audits of Medicaid claims, recoup identified Medicaid overpayments, and repay the federal share, pursuant to 42 U.S.C. §§ 1396a(42) and 1396b(d), 42 C.F.R. § 433.300, et seq., Section 409.913, Florida Statutes, and the Medicaid State Plan.

FINDINGS OF FACT

The Agency adopts the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Agency adopts the conclusions of law set forth in the Recommended Order.

IT IS THEREFORE ADJUDGED THAT:

Respondent is required to repay $721,763.29 in Medicaid overpayments , plus interest at a rate of ten (10) percent per annum as required by§ 409.913(25)(c), Fla. Stat., to the Agency. A

$12,000 fine and $3,405.71 in costs are also imposed against Respondent. Respondent shall make full payment of the overpayment, fine and costs to the Agency for Health Care

Administration within 30 days of the rendition date of this Final Order unless other payment arrangements have been agreed to by the parties. Respondent shall pay by check payable to the Agency for Health Care Administration and mailed to the Agency for Health Care Administration, Office of Finance and Accounting, 2727 Mahan Drive, Mail Stop 14,

Tallahassee, Florida 32308.

'

DONE and ORDERED this d!l day of                         Florida.

, 2013, in Tallahassee,

E

AGENC ALTH CARE ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE PRESCRIBED BY LAW WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this ZS-- [

-!pc() , 2013.

RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

(850) 412-3630

COPIES FURNISHED TO:

Honorable Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearing The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

David W. Nam, Esquire Assistant General Counsel

Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

Kenneth Harden

102 Northeast 10th Avenue, Suite 10

Gainesville, Florida 32601

William Johnson, Qualified Representative 2545 Northeast 11th Place

Gainesville, Florida 32461

Medicaid Program Integrity

Agency for Health Care Administration 2727 Mahan Drive, MS #6

Tallahassee, Florida 32308 Finance & Accounting

Docket for Case No: 12-002868MPI

Orders for Case No: 12-002868MPI