YARON H. MAYA, O.D.,
vs.
Case No. 19-2881
Respondent.
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy by video teleconference with locations in Miami and Tallahassee, Florida, on August 7, 2019.
For Petitioner: Erin M. Ferber, Esquire
For Respondent: Kimberly S. Murray, Esquire
Whether Petitioner, Yaron H. Maya, O.D. ("Dr. Maya"), provided clear and convincing evidence of rehabilitation; and, if so, whether the Agency for Health Care Administration
("AHCA") abused its discretion in denying Dr. Maya's request for an exemption from disqualification from employment as a Medicaid provider.
By correspondence dated April 18, 2019 (the "Denial"), AHCA notified Dr. Maya that it denied his request for an exemption from disqualification pursuant to section 435.07, Florida Statutes. Dr. Maya timely requested an administrative hearing challenging AHCA's decision. On May 29, 2019, AHCA referred the matter to the Division of Administrative Hearings ("DOAH") to conduct a hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes.
The final hearing was held as scheduled on August 7, 2019.
Dr. Maya testified on his own behalf and called his wife, Lisa Maya, and AHCA's Analyst, Amanda Prochaska, as witnesses. Petitioner's Exhibits 1 through 27 were admitted into evidence without objection. AHCA presented the testimony of
Vanessa Risch, Background Screening Operations Manager, and the deposition testimony of Taylor Haddock, Manager of the Systems Management Unit and Director of the Care Provider Background Screening Clearing House. Respondent's Exhibits 1 through 11 were admitted into evidence without objection.
The one-volume Transcript of the proceedings was filed August 22, 2019. The parties timely filed proposed recommended
orders, which were taken into consideration in the drafting of the Recommended Order. The stipulated facts in the parties' Joint Prehearing Stipulation have been incorporated herein.
Unless otherwise indicated, references to the Florida Statutes are to the 2019 version.
AHCA is designated as the single state agency charged with protecting the Medicaid program, and in that capacity, it maintains discretion to approve or deny requests for exemption.
Dr. Maya is licensed to practice optometry in the state of Florida, having been issued license number OPC3250. Dr. Maya had owned and operated Maya Vision Center, Inc., since 2004.
Dr. Maya, whose practice services a historically low-income and underserved population in Plantation, Florida, provides services to Medicaid recipients of all ages, which accounts for approximately 75 percent of his patients.
Dr. Maya was originally enrolled as a Medicaid provider in 1998. He was most recently re-enrolled as a Medicaid provider in April 2014 for a five-year period.
In 2019, Dr. Maya submitted an application to renew his Medicaid Provider Enrollment and, as such, was required to participate in AHCA's Level 2 background screening pursuant to section 409.907(8), Florida Statutes.
Dr. Maya submitted documentation for the required background screening, and it revealed that Dr. Maya pled nolo contendere to grand theft on February 25, 2009, and the court "withheld adjudication" of one count of section 812.014(2)(c), Florida Statutes, a third degree felony. The offense is a disqualifying offense pursuant to section 435.04(2)(m), Florida Statutes.
All terms of the 2009 criminal case disposition were completed, including the immediate payment of restitution of
$25,000; and Dr. Maya was placed on 12 months' probation and granted an early termination of supervision on November 12, 2009, after only six months of supervision.
In accordance with section 435.04(2), Dr. Maya's nolo contendere plea to a felony in violation of section 812.014(2)(c), disqualified him from working as a Medicaid provider. This criminal conviction makes Dr. Maya ineligible to provide services in the Medicaid program overseen by AHCA unless Dr. Maya receives an exemption from AHCA, pursuant to section 435.07.
Dr. Maya submitted an application for exemption to AHCA on or about February 11, 2019, which was denied on April 18, 2019. The Denial stated that AHCA considered the following factors, including, but not limited to:
the circumstances surrounding the criminal incident for which an exemption is sought;
the time period that has elapsed since the incident;
the nature of the harm caused to the victim;
a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.
AHCA stated that it determined that Dr. Maya had not provided clear and convincing evidence of rehabilitation as required by Florida law.
Nature of the 2008 Disqualifying Offense
In 2008, employees from the Medicaid Fraud Control Unit came to Dr. Maya's office and requested 18 months of Medicaid patient records, which he provided. A Medicaid Fraud Control Unit investigator conducted interviews with ten of Dr. Maya's patients that were Medicaid recipients.
The medical records and interviews revealed Dr. Maya billed for providing tinted lens, glasses, and for additional office visits that were not adequately documented. Dr. Maya was subsequently charged with grand theft as a result of overcharging Medicaid patients for services that could not be verified with documentation.
On the advice of counsel, Dr. Maya pled no contest to the charge of grand theft, and he was placed on 12 months' probation and ordered to pay restitution of $25,000. As a result of this criminal incident, Dr. Maya was disciplined by the Department of Health, Board of Optometry because he was a licensed optometrist when the crime occurred. The Board of Optometry filed an administrative complaint on February 17, 2010, and, as a result, his license was reprimanded and he was placed on probation with a stayed suspension for one year. At no time did Dr. Maya lose his license to practice optometry. Dr. Maya's 2014 New Application Granted by AHCA
On July 22, 2013, in connection with his first Provider Enrollment Renewal Application after his criminal sentencing, Dr. Maya submitted an application to AHCA for Exemption from Disqualification from Employment. On August 9, 2013, AHCA issued the Denial of Dr. Maya's request for Exemption from Disqualification. On August 28, 2013, Dr. Maya filed a Petition for Formal Administrative Hearing in connection with AHCA's denial which was referred to DOAH on September 11, 2013.
On October 31, 2013, during the pendency of that DOAH appeal, Dr. Maya was advised by Zach Masters, a Health Services and Facilities Consultant in AHCA's Background Screening Unit, that having the charges sealed would clear up the background screening issue, because sealed or expunged charges were not
considered disqualifying by AHCA. Dr. Maya thereafter had his criminal record sealed.
On February 14, 2014, Katherine Heyward, Assistant General Counsel at AHCA, notified Dr. Maya by written correspondence that "[h]e is no longer deemed to be disqualified for purposes of his background screening" pursuant to
section 435.04(2), as his criminal record has been sealed. AHCA issued a Final Order on March 31, 2014, dismissing the case as moot.
Accordingly, after having his record sealed, Dr. Maya dropped the appeal on the issue of exemption (because he was told by AHCA that it was not necessary) and submitted a new provider enrollment application. He was subsequently re- enrolled in the Medicaid program in April 2014. Although his records were sealed, Dr. Maya still disclosed all the facts regarding his previous charge. In April 2014, AHCA enrolled Dr. Maya for a five-year period as a Medicaid provider. Internal Policy Change in 2015 at AHCA
According to the deposition testimony of
Taylor Haddock, AHCA's Unit Manager of the Central Intake Unit and Director of the Care Provider Background Screening Clearing House, in 2014, the Background Screening Unit ("BGS") did not consider any sealed offenses for purposes of disqualification for a Level 2 background check.
However, in 2015, the BGS was audited by the Agency's Inspector General Unit ("IG"). After completing the audit, the IG issued Report 15-08 ("Report") in May 2016 that found, "the BGS Exemption section, at the time of our review, did not review sealed criminal history records on adults."
In relevant part, the Report states:
According to Office of General Counsel (OGC) staff, section 408.809, F.S. authorizes, but does not require, the Agency to review non- juvenile sealed or expunged records in reviewing an applicant's criminal history.
* * *
Although Exemption staff members have access to an individual's sealed adult criminal history record through the Clearinghouse, the[y] did not review it as part of the exemption application process. Excluding these sealed records may result in persons who have committed disqualifying offenses being determined eligible by BGS staff.
* * *
In a Memorandum dated September 16, 2015, to the Inspector General's Office, OGC staff determined that "pursuant to Section 408.808, AHCA can review such records when determining background screening eligibility for every person it screens, unless such sealed or expunged records are juvenile delinquency records, which are specifically exempt under the statute. (Emphasis added).
Apparently, as a result of the audit, as of December 2015, the policy of AHCA's BGS Exemption section was changed to include the review of non-juvenile sealed offenses
when considering applications for exemption. According to Ms. Haddock, AHCA undertook no effort to promulgate a rule in this regard.
In fact, despite the IG's finding in the Report that the lack of guidelines and processes in the BGS Exemption unit would potentially result in similar exemption cases being processed differently depending on the individual reviewers experience and training, AHCA made no attempt to promulgate any rules or standards for exemption reviews. Ms. Haddock admitted that it is possible for individual exemption cases to be processed differently depending on the individual staff handling the case.
AHCA's 2019 Denial
As a result of this internal policy change to consider sealed non-juvenile records, Dr. Maya was notified that his 2019 renewal application was denied. He then timely requested an exemption from disqualification.
The final decision on Dr. Maya's Exemption Request was made by Respondent's upper management and was based on the information and facts represented in the "Exemption Application Package" ("Package"). A "Background Screening Exemption Teleconference Worksheet" and "Exemption Decision Summary" are completed by AHCA staff prior to the time the Package is submitted to upper management and are included in the Package.
Amanda Prochaska, Health Care Facilities Consultant with the BGS, who worked for AHCA for one year, conducted the background investigation for Dr. Maya's 2019 exemption application. The Package was also reviewed for completeness by Vanessa Risch, Operations and Management Consultant Manager of the BGS, who has been employed with AHCA for four years. However, she did not make any recommendation regarding whether to grant the exemption application.
Ms. Prochaska testified that "rehabilitation can be-- generally, for us, it's classes" and "can be a plethora of different things, depending on the nature of the charge."
Ms. Prochaska further testified that, "[r]ehabilitation can sometimes mean drug treatment programs, classes, that sort of thing."
Ms. Prochaska testified that in this case, rehabilitation is "going to include classes, anything that they have done to, basically, rectify in the actual charge itself." In other words, the required rehabilitation must be commensurate with the alleged conduct in the underlying charges.
Ms. Prochaska inaccurately documented Dr. Maya's rehabilitation efforts, which are clear and convincing and commensurate with the alleged conduct in the underlying charges.
As part of the application review process, AHCA conducts a recorded teleconference with the applicant "to give
them an opportunity to tell us in their own words basically what's taken place with their past, and to give us an overall view of their background, and what's taken place since then." The teleconference is also summarized in the general notes of the analyst "to make sure that anything that [they're] listening to, obviously, [they've] documented that correctly for the case." These notes are then submitted as part of the package to upper management.
As pertains to Dr. Maya's 2019 renewal application, upper management did not attend or independently review the recorded teleconference and instead relied on the records compiled and prepared by Ms. Prochaska.
The Background Screening Exemption Teleconference Worksheet incorrectly states there was "No Rehab." During the teleconference, Dr. Maya explained the closure of one office location, the implementation of an electronic health records system, and the hiring of a full-time practice manager.
The Background Screening Exemption Teleconference Worksheet also incorrectly states that "[Dr. Maya] wishes he would have 'slowed down' and paid more attention to the care of his patients and less on the Medicaid end; 'checks and balances.'"
During the recorded teleconference, Dr. Maya actually
stated:
I just want answer this question, because I believe if I did slow down, and if I didn't open two practices, and I spent--close to home, and I'll try to do--just see as many patients as I can just, I just--I think I never been--and I cared about--my thought was concentrating on the--on the medical part, on seeing the patients, do the right thing, and give them their glasses, take care of their medical needs, and--and not pay that much attention to--to the practice management--to the paperwork, the other parts that the medical doctor has to do, and--so if I can do it all over again, if I could change, I would change my practice, and close to home, and see less patients, and I would hire, like I did before, hire more employees. I changed my electronic health records. I did so many things just so there will be checks and balances, and not only--and I don't look only just at the patients that needs to get glasses or contacts for medical care, but I--I have an oversight, 100 percent, on the other patient, from step one to the last step of the billing, and getting paid, something that I lacked 10--10 years ago, so. "
Dr. Maya's statement regarding the prior events reflects his acknowledgement that he failed to pay enough attention to the administrative requirements of his practice which led to improper billing and his criminal charges. He has done everything within his power to see that these billing issues never recur.
The Exemption Decision Summary correctly states that Dr. Maya "has paid all sanctions and completed all ordered
sentencing provisions." In fact, Dr. Maya immediately paid restitution and was granted an early termination of supervision on November 12, 2009.
The Exemption Decision Summary incorrectly indicates Dr. Maya has "No Employment History" and "No Health Care Training." However, Dr. Maya fully disclosed his employment history and education and training in sections three and four of the Application for Exemption.
Dr. Maya also submitted a Statement of Rehabilitation to AHCA, which describes, among other things, Dr. Maya's continuing education and training, including courses in jurisprudence, medical errors, fraud, waste, and abuse.
In response to a request from AHCA for additional employment information, Dr. Maya submitted a statement verifying his self-employment as the owner/optometrist for Maya Vision Center since 2004.
Dr. Maya also explained in his application that he sees approximately 150 patients a week in his practice. He has no grievances or claims of malpractice against this license. He is also a provider in good standing with most major medical and vision insurance plans.
The Exemption Decision Summary also incorrectly indicates "[n]o rehabilitation was required or taken voluntarily." In fact, Dr. Maya submitted a Personal Statement
in which he describes the significant rehabilitative efforts which match the underlying disqualifying offense (theft as a result of inadequate or erroneous billing practices and lack of documentation) undertaken as described herein.
Dr. Maya also submitted myriad references from colleagues in the community. These positive recommendations include the following:
Lisa March, M.S., CRC ChildNet
ChildNet Guardians continue to take children to Dr. Maya's office and ChildNet request that they do, knowing we can trust Dr. Maya to do the very best for our children. The office personnel are pleasant, courteous and professional, providing the best care for our children. This agency's Medical staff contact Dr. Maya to discuss treatment plans and payment and find Dr. Maya's fees to be reasonable.
John R. Davis, O.D. Clinical Vision Director, EyeQuest
As a participating provider for these Plans Dr. Maya has shown a high level of professionalism, patient satisfaction, and has performed exceptionally on any quality or medical record review initiative. We have been very happy with his willingness to see all members, including Medicaid enrollees, without issue.
Eric Davis, Residential Manager, SOS Children's Village Florida
I can attest that Dr. Maya holds high standards regarding moral character and integrity. He utilizes his skill effectively and I completely trust our children in his hands. No matter how young,
old, troubled or indifferent our children may be, Dr. Maya treats them with the same respect and fairness as any other patient and for that, I am beyond grateful.
AHCA's Package contains incomplete, misleading, and inaccurate information as it relates to Dr. Maya's rehabilitation, his history of employment, and health care training. Unfortunately, upper management was not privy to all relevant information at the time of making its decision regarding the application from exemption.
Dr. Maya's Rehabilitation
There is no dispute that Dr. Maya immediately paid all sanctions and completed all sentencing provisions.
As a result of the investigation and criminal charge, Dr. Maya significantly modified his practice. He closed one of his two office locations in order to better focus on time management and administrative responsibilities.
In order to prevent any recurrence of billing errors or omissions, Dr. Maya implemented many changes in his practice to ensure that every service is documented, charges are reconciled with medical records before any claim is submitted, and every line item is reviewed following receipt of payment. A comprehensive electronic health records system was implemented in Dr. Maya's office so that errors would not occur and a full- time administrative manager was hired. Dr. Maya's wife,
Mrs. Lisa Maya, who works in the practice handling billing, testified at length regarding the multiple levels of checks now done by the practice to make sure every procedure is fully documented and properly billed.
Dr. Maya also participates in local organizations, including the Broward County Optometry Association, which holds quarterly meetings during which various industry topics are discussed, including practice management.
Dr. Maya has continuously provided low-cost and free optometry service to children in the Broward County foster care system and to veterans.
At all times material hereto, Dr. Maya has maintained his optometry license. With the exception of a brief period of time between 2013 and 2014, when he was actively attempting to have the underlying criminal record sealed and his new Medicaid enrollment application was pending, Dr. Maya has been an enrolled Medicaid provider.
With the exception of the investigation in 2008, Dr. Maya has never been the subject of any complaint or investigation by the Florida Medicaid program. "There is no
record of discipline in Dr. Maya's Medicaid Provider enrollment file since February 14, 2014." See Pet. Ex. 24, pp. 107-109.
There is also no evidence of any prior or subsequent criminal history for Dr. Maya.
Significantly, there was no evidence or allegation in this proceeding that Dr. Maya in any way injured a patient or conducted himself as a clinician in anything other than consistent with applicable medical standards. The evidence shows that during his tenure as a Medicaid provider, Dr. Maya has provided excellent service to his patients and community. Ultimate Findings of Fact
Nothing has changed since Dr. Maya was approved as a Medicaid provider in 2014, other than AHCA's internal policy change regarding the review of sealed criminal records of adults.
Dr. Maya has been an upstanding, well-respected physician and member of his community who has contributed greatly to his profession and the underserved in need of his skilled professional services.
Under the particular circumstances of this case, there is no evidence that would indicate that Dr. Maya would present a danger if granted an exemption and allowed to continue as a Medicaid provider. To the contrary, the evidence presented at hearing demonstrates that patients and persons within Dr. Maya's community have benefited, and will continue to benefit, from
Dr. Maya's optometry services through Medicaid. The only danger evident here would be that the Medicaid population would not be
able to obtain optometry services if Dr. Maya were not granted an exemption from disqualification.
The clear and convincing evidence presented at the final hearing demonstrates that Dr. Maya is fully rehabilitated from his offense that occurred more than ten years ago and that he poses no danger to any vulnerable population if continued employment as a Medicaid provider is allowed
CONCLUSIONS OF LAW1/
DOAH has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 435.07, Florida Statutes.
There is no question that Dr. Maya committed a disqualifying offense. However, the agency head may grant to any person otherwise disqualified from being a Medicaid provider an exemption from disqualification for:
1. Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; . . . .
To be eligible for an exemption, Dr. Maya must demonstrate by clear and convincing evidence that he should not be disqualified from being a Medicaid provider because he is rehabilitated. § 435.07(3)(a), Fla. Stat.; J.D. v. Fla. Dep't
of Child. & Fams., 114 So. 3d 1127, 1131 (Fla. 1st DCA
2013)("the ultimate issue of fact to be determined in a proceeding under section 435.07 is whether the applicant has demonstrated rehabilitation by clear and convincing evidence."). This is a heavy burden. Smith v. Dep't of Health and Rehab.
Servs., 522 So. 2d 956, 958 (Fla. 1st DCA 1988). Dr. Maya has
the burden of setting forth clear and convincing evidence of:
[R]ehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if [Medicaid provider status] is allowed.
§ 435.07(3)(a), Fla. Stat.
The "clear and convincing evidence" standard requires that the evidence must be found credible, the facts to which the witnesses testify be distinctly remembered, the testimony must be precise and explicit, and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Davey, 645 So.
2d 398, 404 (Fla. 1994); Slomowitz v. Walker, 429 So. 2d 797,
800 (Fla. 4th DCA 1983).
Pursuant to section 435.07, even if rehabilitation is shown, the applicant is only eligible for an exemption, not entitled to one. AHCA retains discretion to deny the exemption, provided its decision does not constitute an abuse of discretion. J.D., 114 So. 3d at 1127. Discretion, in this
sense, is abused when the proposed agency action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the agency. If reasonable persons could differ as to the propriety of the proposed agency action taken, then the action is not unreasonable, and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d
1197, 1203 (Fla. 1980).
Because section 435.07 represents an exemption from a statute enacted to protect the public welfare, it must be "strictly construed against the person claiming the exemption." Heburn v. Dep't of Child. & Fams., 772 So. 2d 561, 563 (Fla. 1st
DCA 2000).
As detailed in the Findings of Fact contained herein, Dr. Maya met his heavy burden in this de novo chapter 120 proceeding of presenting clear and convincing evidence of rehabilitation. At hearing, the undersigned had the distinct opportunity to observe the demeanor and credibility of Dr. and Mrs. Maya. AHCA did not have the benefit of this testimony when
it formulated its proposed action to deny Dr. Maya's exemption request.
Further, the undersigned had the opportunity to listen to the recording of the Background Screening Exemption Teleconference and review all of the exemption application materials provided by Dr. Maya that were not accurately portrayed in the Package relied upon by the decision–makers.
Consideration of the compelling testimonial evidence presented at the final hearing and the full exemption application materials, which were not made available at the time AHCA proposed to deny Dr. Maya's exemption request, leads the undersigned to conclude that it would be an abuse of discretion to deny the exemption, and that AHCA should exercise its discretion in favor of granting Dr. Maya's exemption from
disqualification.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Dr. Maya's renewal application as a Medicaid provider because of an exemption from disqualification as a Medicaid provider.
DONE AND ENTERED this 24th day of September, 2019, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2019.
1/ This proceeding was not brought as a rule challenge, nor did Dr. Maya raise this issue in his proposed recommended order.
However, effective July 1, 2016, section 120.57(1)(e)1. provides that neither an agency nor an administrative law judge may, "base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority." Accordingly, agency action in this case cannot be based upon, or supported by, reference to an unadopted rule. Coventry First, LLC v.
State, Office of Ins. Reg., 38 So. 3d 200, 203 (Fla. 1st DCA 2010) (quoting Dep't of Rev. v. Vanjaria Enters., Inc., 675 So. 2d 252, 255 (Fla. 5th DCA 1996)).
As a preliminary matter, AHCA's policy, that it must now review the sealed records of adults, as articulated in its proposed recommended order and the testimony of AHCA staff, has the characteristics of a rule. It is an agency statement of general applicability implementing, interpreting, or prescribing policy. It describes the procedure and practice requirements of the agency. See Dep't of Rev. of State of Fla. v. Vanjaria Enters., Inc., 675 So. 2d at 252. It was "unadopted" because rulemaking procedures were not followed.
However, it is "readily apparent" from the statute itself that AHCA must review sealed criminal histories of adults. As explained by AHCA, this change in the policy of reviewing sealed records was necessary to comply with AHCA's statutory authority pursuant to section 435.04. Accordingly, it is not considered a rule. See, e.g., Amerisure Mut. Ins. Co. v. Dep't of Fin.
Servs., 156 So. 3d 520, 532 (Fla. 1st DCA 2015); St. Francis Hosp., Inc. v. Dep't of Health and Rehab. Servs., 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989); Gabba-Leaf, LLC v. Dep't of Bus. & Prof'l Reg., Div. of Alcoholic Bevs. and Tobacco, 257 So. 3d 1205 (Fla. 1st DCA 2018).
Erin M. Ferber, Esquire Nicholson & Eastin, LLP
Kimberly S. Murray, Esquire
Richard J. Shoop, Agency Clerk
Mary C. Mayhew, Secretary
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.
