The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint dated October 1, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the administration of the Insurance Code of the State of Florida, including Chapter 626, Florida Statutes. See Section 20.121, Florida Statutes (2002). At the times material to this proceeding, Mr. Klein was licensed in Florida as an insurance agent for several lines of insurance. Mr. Klein was an authorized agent for Freedom Life. On or about February 6, 2002, the Department received a Termination of Appointment Form from Freedom Life, in which Freedom Life notified the Department that Mr. Klein's appointment as its agent had been terminated. Documentation attached to the form included four applications for health insurance and four checks for premium submitted with the applications. After receiving the Termination of Appointment Form, the Department initiated an investigation into the matter. Applicants Steven and Nancy Schwinn. The first questionable application for health insurance provided to the Department by Freedom Life named Steven and Nancy Schwinn as applicants, carried a signature purporting to be that of Mr. Klein, and was dated November 23, 2001. In the application, Mr. Schwinn's address was listed as Post Office Box 256 in Fort Lauderdale; his employer was identified as M.L.K. Inc. Investments; and Blue Cross/Blue Shield was identified as his current health insurance carrier. The Department's investigation revealed the following: The telephone number given for Steven and Nancy Schwinn is disconnected and neither Bellsouth nor AT&T has any record of having ever assigned a telephone number to Steven and/or Nancy Schwinn. A computer search failed to turn up a telephone number in Florida for Steven and/or Nancy Schwinn. The United States Postal Service reported that Post Office Box 256 in Fort Lauderdale is not assigned to Steven and/or Nancy Schwinn, but is, and has been, assigned to another individual unaffiliated with the transaction at issue herein. A search of property records in Miami-Dade, Broward, and Palm Beach counties failed to show any real property listed in the names of Steven and/or Nancy Schwinn. The Social Security Administration reported that the Social Security numbers listed on the application for Steven and Nancy Schwinn are invalid; that is, the Social Security numbers do not exist. The Florida Department of Revenue reported that a search of its records did not reveal any wage information for Steven or Nancy Schwinn under the Social Security numbers provided on the application. Blue Cross/Blue Shield reported that it could find no evidence that it had ever provided health insurance coverage to Steven Schwinn. Applicants Cary and Bonnie Washington. The second questionable application for health insurance provided to the Department by Freedom Life named Cary and Bonnie Washington as applicants, carried a signature purporting to be that of Mr. Klein, and was dated November 23, 2001. In the application, Mr. Washington's address was listed as Post Office Box 256 in Fort Lauderdale; his employer was identified as M.L.K. Investments; and Blue Cross/Blue Shield was identified as his current health insurance carrier. The Department's investigation revealed the following: The telephone number given for Cary and Bonnie Washington is disconnected and neither Bellsouth nor AT&T has any record of having ever assigned a telephone number to Cary and/or Bonnie Washington. A computer search failed to turn up a telephone number in Florida for Cary and/or Bonnie Washington. The United States Postal Service reported that Post Office Box 256 in Fort Lauderdale is not assigned to Cary and/or Bonnie Washington, but was, and has been, assigned to another individual unaffiliated with the transaction at issue herein. A search of property records in Miami-Dade, Broward, and Palm Beach counties failed to show any real property listed in the names of Cary and/or Bonnie Washington. The Social Security Administration reported that, although the Social Security numbers listed on the application for Cary and Bonnie Washington are valid, they are not issued to persons named Cary and Bonnie Washington. The Florida Department of Revenue reported that a search of its records did not reveal any wage information for Cary or Bonnie Washington under the Social Security numbers provided on the application. Blue Cross/Blue Shield reported that it could find no evidence that it had ever provided health insurance coverage to Cary Washington. Applicants Robert and Kathy Antetomer. The third questionable application for health insurance provided to the Department by Freedom Life named Robert and Kathy Antetomer as applicants, carried a signature purporting to be that of Mr. Klein, and was dated November 23, 2001. In the application, Mr. Antetomer's address was listed as Post Office Box 256 in Fort Lauderdale; his employer was identified as M.L.K. Investments; and Blue Cross/Blue Shield was identified as his current health insurance carrier. The Department's investigation revealed the following: The telephone number given for Robert and Kathy Antetomer is disconnected and neither Bellsouth nor AT&T has any record of having ever assigned a telephone number to Robert and/or Kathy Antetomer. A computer search failed to turn up a telephone number in Florida for Robert and/or Kathy Antetomer. The United States Postal Service reported that Post Office Box 256 in Fort Lauderdale is not assigned to Robert and/or Kathy Antetomer, but is, and has been, assigned to another individual unaffiliated with the transaction at issue herein. A search of property records in Miami-Dade, Broward, and Palm Beach counties failed to show any real property listed in the names of Robert and/or Kathy Antetomer. The Social Security Administration reported that, although the Social Security number listed on the application for Kathy Antetomer is valid, it is not issued to a person named Kathy Antetomer. The Social Security Administration reported that the Social Security number listed on the application for Robert Antetomer is invalid; that is, the Social Security number does not exist. The Florida Department of Revenue reported that a search of its records did not reveal any wage information for Robert or Kathy Antetomer under the Social Security numbers provided on the application. Blue Cross/Blue Shield reported that it could find no evidence that it had ever provided health insurance coverage to Robert Antetomer. Applicants Karen and Paul Holock. The fourth questionable application for health insurance provided to the Department by Freedom Life named Karen and Paul Holock as applicants, carried a signature purporting to be that of Mr. Klein, and was dated November 29, 2001. In the application, Mrs. Holock's address was listed as Post Office Box 431 in Fort Lauderdale; her employer was identified as M.L.K. Investments; and Foundation Health was identified as her current health insurance carrier. The Department's investigation revealed the following: The telephone number given for Karen and Paul Holock is disconnected and neither Bellsouth nor AT&T has any record of having ever assigned a telephone number to Karen and/or Paul Holock. A computer search failed to turn up a telephone number in Florida for Karen and/or Paul Holock. The United States Postal Service reported that Post Office Box 431 in Fort Lauderdale is not assigned to Karen and/or Paul Holock, but is, and has been, assigned to another individual unaffiliated with the transaction at issue herein. A search of property records in Miami-Dade, Broward, and Palm Beach counties failed to show any real property listed in the names of Karen and/or Paul Holock. The Social Security Administration reported that, although the Social Security numbers listed on the application for Karen and Paul Holock are valid, they are not issued to persons named Karen and Paul Holock. The Florida Department of Revenue reported that a search of its records did not reveal any wage information for Karen or Paul Holock under the Social Security numbers provided on the application. Foundation Health reported that it could find no evidence that it had ever provided health insurance coverage to Karen Holock. According to the records of the Florida Division of Corporations, M.L.K. Inc. was administratively dissolved in September 1997; Mr. Klein is listed as the only director of the corporation. The four checks that accompanied the four health insurance applications were written on an account purportedly belonging to "M.L.K. Inc."; three of the checks were returned to Freedom Life with "Account Closed" stamped on the front; Freedom Life did not submit the fourth check for deposit. Mr. Klein admitted in the letter sent to the Department's counsel on or about April 11, 2003, that he had written "bad checks" for the four policies.4 The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Mr. Klein is not trustworthy or fit to engage in business as an insurance agent, and he has committed dishonest and fraudulent practices as an agent licensed by the State of Florida and appointed by Freedom Life: Mr. Klein completed and submitted four health insurance applications to Freedom Life when he knew that the persons named as applicants were fictitious and that the information contained in the applications was false; Mr. Klein knowingly and deliberately sent with the applications four checks for the policy premiums that were drawn on a bank account that he knew was closed and contained no funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Matthew Lawrence Klein violated Section 626.611(7) and (9), Florida Statutes (2001), and suspending his license(s) to engage in the business of insurance for a period of 36 months. DONE AND ENTERED this 21st day of May, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 21st day of May, 2003.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On October 27, 2005, Respondent was charged in the Circuit Court of Escambia County, Florida, in a two-count criminal information in Case No. 2005 CF 005245. The first count alleged that he had misappropriated insurance funds of more than $300 but less than $20,000, which insurance funds he had received in his capacity as an insurance agent and while acting as an insurance agent under his license. The second count charged him with uttering a forged instrument, to-wit: a declaration page. On November 21, 2006, a jury found Respondent guilty as charged on both counts. On May 10, 2006, Respondent was again charged in the Circuit Court of Escambia County, Florida, in a one-count information in Case No. 2006 CF 002108. That information alleged that he had misappropriated insurance funds of more than $300 but less than $20,000, which insurance funds he had received in his capacity as an insurance agent and while acting as an insurance agent under his license. Respondent entered a plea of nolo contendere in that case. On January 3, 2007, an Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in the Circuit Court of Escambia County, Florida, as to all three felonies. That Order further placed Respondent on probation for a period of five years as to each count, to run concurrently. That Order also prohibited Respondent from working as an insurance agent during his term of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Amended Administrative Complaint and revoking Respondent's insurance licenses. DONE AND ENTERED this 3rd day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 3rd day of May, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level II Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level II Tallahassee, Florida 32399-0307 David J. Busch, Esquire Department of Financial Services Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 David K. Gemmell 6584 Lakeshore Drive Milton, Florida 32570 David K. Gemmell A All American Insurance Agency of Pensacola, Inc. 3960 West Navy Boulevard, Suite 21 Pensacola, Florida 32507-1268
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated August 30, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency that is authorized to take administrative action against persons holding licenses as insurance agents in the State of Florida and to impose discipline on the licensees when warranted. See §§ 626.016 and 626.611, Fla. Stat. (2007).1 At the times material to this proceeding, Mr. Estess was licensed by the State of Florida as a life insurance agent, a life and health insurance agent, a general lines insurance agent, and a health insurance agent. Mr. Estess held license number A079117. At the times material to this proceeding, Mr. Estess was the director of Estess Insurance, located in Hollywood, Florida. Mr. Estess has been licensed as an insurance agent in Florida for 34 years and has never had any disciplinary action taken against him. In or about August 1997, Mr. Estess was approached by Ronald Samuels, a client of his insurance business and a former co-worker. Mr. Samuels offered Mr. Estess $5,000.00 to kill Mr. Samuels' former wife. Mr. Estess accepted the money and agreed to kill Mr. Samuels' former wife. Even though he took the money, Mr. Estess did not intend to commit the murder. He took the money because he was heavily involved in drugs and alcohol and needed money to support his drug habit. After taking the money from Mr. Samuels, Mr. Estess introduced Mr. Samuels to a person who was known by the street name "T" as a person who could help him accomplish the murder of his former wife. The first meeting between Mr. Samuels and "T" took place at Mr. Estess's condominium, and Mr. Samuels told Mr. Estess that he paid "T" $5,000.00 to murder Mr. Samuels' former wife. Mr. Estess drove "T" to Boca Raton, Florida, and pointed out the location where Mr. Samuels's former wife worked; this was the location at which the murder was to take place. "T" asked Mr. Estess about the kind of car Mr. Samuels's former wife drove, and Mr. Estess gave "T" this information. Mr. Estess also introduced Mr. Samuels to Eddie Stafford, known by the street name of "Slim," as a person who could accomplish the murder of Mr. Samuels's former wife. Eddie Stafford and a man named Ryan Runyon attempted to murder Mr. Samuels's former wife by shooting her on or about October 14, 1997. She was wounded, but the wound was not fatal. Rather, it rendered her a quadriplegic. Mr. Estess's automobile was used in the attempted murder. Mr. Estess had taken it to be detailed on the day of the attempted murder, and Mr. Samuels apparently took the car and gave it to Eddie Stafford. Mr. Estess was angry because Eddie Stafford did not change the license plates on his car when he drove it to the location where they attempted to murder Mr. Samuels's former wife. On the night of the day the attempted murder took place, Mr. Samuels went to Mr. Estess's condominium. Mr. Estess told him to stay away. Mr. Samuels called Mr. Estess's office the day after the attempted murder and told Mr. Estess that he was very angry because his former wife had not been killed. Between the time Mr. Estess took the $5,000.00 from Mr. Samuels and the time the attempt to murder Mr. Samuels's former wife occurred, Mr. Samuels telephoned Mr. Estess "all the time" to find out when the murder would take place. Mr. Estess left town two days after the attempted murder and entered a drug rehabilitation program. He was instrumental in effecting the Mr. Samuels's arrest in Mexico, and he was granted immunity from prosecution and ultimately testified against Mr. Samuels in Palm Beach County, Florida. Even though Mr. Estess may have taken the $5,000.00 from Mr. Samuels with no intention of committing the murder of Mr. Samuels's former wife, he introduced Mr. Samuels to persons he thought could accomplish the murder, and he was involved in planning the murder with "T". Eddie Stafford, one of the men Mr. Estess introduced to Mr. Samuels, was an accomplice to the attempted murder and was present when Mr. Samuels' former wife was shot. Mr. Estess also must have given Mr. Samuels reason to believe he was involved in planning the murder because Mr. Samuels regularly contacted Mr. Estess to find out when the murder was to take place. Regardless of his intention not to murder Mr. Samuels's former wife, Mr. Estess did participate in the attempted murder because he was instrumental in planning and making preparations for the murder. Mr. Estess's participation in such a vile act at the request of a client of his insurance business renders Mr. Estess unfit to hold a license as an insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Hugh Maxwell Estess has demonstrated a lack of unfitness and trustworthiness to engage in the business of insurance and revoking Mr. Estess's insurance agent's license pursuant to Section 626,611(7), Florida Statutes. DONE AND ENTERED this 1st day of May, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 1st day of May, 2008.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as 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 of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this J x! of Aol » 2012. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) — Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Suzanne Suarez Hurley, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) | Shawn McCauley Medicaid Contract Management Michael Matonte, Administrator and/or Family Carefree House, Inc. Agency for Health Care Administration 1875 Allendale Drive (Electronic Mail) Clearwater, Florida 33760 (U.S. Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) _| NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until 3 compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue At issue is whether Petitioner has met the pleading requirements in section 120.56(4), Florida Statutes (2020),1 to allege "agency statements" that meet the definition of a "rule."
Findings Of Fact Accepting the well-pled allegations of fact in the Amended Petition (including its exhibits) as true for purposes of this Order, the following findings of fact are made: PBS is the largest provider of Applied Behavioral Analysis services in Florida. Its principal place of business is 7108 South Kanner Highway, Stuart, Florida 34997. AHCA is an executive agency of the State of Florida, headquartered at the Fort Knox Executive Center, 2727 Mahan Drive, Building 3, Tallahassee, Florida 32308. AHCA has promulgated the Florida Medicaid Provider Reimbursement Handbook, CMS-1500 (Handbook), which is adopted by reference in Florida Administrative Code Rule 59G-4.001. See Original Pet., Ex. A, adopted by reference in Amended Pet., Ex. A. The Handbook, some two inches thick when printed out on paper, contains requirements and instructions for many different types of Medicaid providers regarding completing, submitting, and processing claims for reimbursement for services provided to Medicaid recipients. AHCA has also promulgated the Florida Medicaid Behavior Analysis Services Coverage Policy (BA Coverage Policy). See Original Pet., Ex. B, adopted by reference in Amended Pet., Ex. B.2 The BA Coverage Policy contains eight pages of detailed criteria, addressing eligibility for recipients and for providers, coverage, exclusions, documentation requirements, authorization requirements, reimbursement criteria, and review criteria for BA services. As set forth in the BA Coverage Policy, "[b]ehavior analysis (BA) services are highly structured interventions, strategies, and approaches provided to decrease maladaptive behaviors and increase or reinforce appropriate behaviors." BA Coverage Policy at 1. BA services "are considered as either the treatment of choice or as an adjunct treatment modality for a 2 The BA Coverage Policy attached as Exhibit B is undated; it is identified as a "Draft Rule." It appears that the Draft Rule is substantively the same as the current promulgated BA Coverage Policy (October 2017), incorporated by reference in rule 59G-4.125. See link available at: https://www.flrules.org/Gateway/reference.asp?No=Ref-08679 (last visited July 10, 2021). Out of caution, citations herein to specific pages in the BA Coverage Policy are to the October 2017 version, which is the official promulgated version. variety of conditions and disorders where maladaptive behaviors are part of the recipient's clinical presentation, including behavioral manifestations of diagnoses such as Autism Spectrum Disorder and other behavioral health conditions." BA Coverage Policy at 6. Electronic Visit Verification (EVV) is a system which serves to capture relevant information regarding the provision of services. The information captured by the EVV system includes: (a) that an approved provider provided the agreed-upon point-of-care service; (b) the time that a visit began and ended; (c) the individual who received the service; and (d) the date and location of the provided service. An EVV system has been in place and is required to be used by Medicaid providers of home health services. See § 409.9132, Fla. Stat., and Fla. Admin. Code R. 59G-4.132. The EVV system for home health services began as a pilot project in one county (Miami-Dade), and then was expanded to statewide use. The EVV system for home health services was developed, and is operated, by a procured vendor with which AHCA has contracted. § 409.9132, Fla. Stat. Rule 59G-4.132 requires that Medicaid providers of home health services use the EVV system and submit claims to be reimbursed for services rendered through the EVV system. AHCA has taken steps to extend the usage of the same kind of EVV system for BA services. AHCA procured the services of a vendor, identified by Petitioner as "Tellus," to create and operate an EVV system for BA services.3 The EVV system for BA services is currently operative in a "Pilot Region" only. BA service providers within the Pilot Region are currently 3 That AHCA operates an EVV system for BA services through its procured vendor, Tellus, is set forth in Exhibit C, attached to the Original Petition and adopted by reference in the Amended Petition. Exhibit C is Petitioner's notice letter to AHCA of its claims of unadopted rules that it seeks to challenge in this proceeding, as a precursor to seeking attorney's fees pursuant to section 120.595(4). See Amended Pet. at 7, ¶ 20, and at 11 (Relief requested). Exhibit C notifies AHCA that the alleged unadopted rules "relate to AHCA's Electronic Visit Verification ("EVV") system and the actions of AHCA's EVV vendor/agent, Tellus" and are based on "AHCA's implementation of the EVV system (through its procured vendor, Tellus)[.]" Ex. C at 1, 3. required to use the EVV system. It was not disclosed how long the EVV system has been in use in the Pilot Region, or if its use by BA providers has been required since inception (versus being phased in). The Pilot Region covers Medicaid regions 9, 10, and 11, which include the following counties: Indian River, Martin, Okeechobee, Palm Beach, St. Lucie, Broward, Miami- Dade, and Monroe. PBS provides BA services in the Pilot Region. A fair inference from Petitioner's allegations of having called problems to AHCA's attention for "the past several months" is that the transition to use of the EVV system for BA services in the Pilot Region is relatively recent. See Amended Pet. at 5, ¶ 15. AHCA has announced a plan to expand this EVV system to cover all BA services provided statewide, "by potentially as early as sometime this summer." Amended Pet. at 3, ¶ 10. Recently, AHCA published Notice of Rule Development to amend rule 59G-4.132, which is now called "Home Health Electronic Visit Verification Program." Amended Pet., Ex. D. According to the Notice, the rule amendments will include changing the name of the rule to "Electronic Visit Verification Program," and expanding the scope of the rule to add that providers of BA services (in addition to home health service providers) must render services to recipients and submit claims in accordance with rule 59G- 4.132. After publication of the Notice, a rule development workshop was held on May 28, 2021. PBS has made clear, in two different parts of the Amended Petition, that it is not challenging as an unadopted rule the requirement that BA service providers use the EVV system. "PBS does not allege that the use of EVV, in and of itself, to verify data relating to ABA[4] services constitutes an unpromulgated rule. In fact, PBS is a strong proponent of a functional EVV 4 PBS describes its services as "applied behavioral analysis," for which it uses the acronym "ABA." However, AHCA's rules, such as the BA Coverage Policy, use the term "behavior analysis" to describe these services, for which AHCA uses the acronym "BA." system." Amended Pet. at 4, ¶ 11. "[A]s stated herein, PBS does not contest that EVV use is required." Amended Pet. at 9, n. 5. Instead, PBS seeks to challenge certain aspects of AHCA's implementation (through its procured vendor, Tellus) of the EVV system in the Pilot Region. In particular, PBS articulates the objects of its unadopted rule challenge as follows: The Agency is operating pursuant to two generally applicable policies which fit the legal definition of unpromulgated rules. First, it is denying reimbursement for clean claims for ABA services, contrary to the Handbook's promulgated assurance that such clean claims will be paid. Second, the Agency is denying ABA providers the ability to resubmit these claims for service reimbursement, despite the Handbook's promulgated allowance for such resubmission. Amended Pet. at 9, ¶ 26. The allegations and exhibit provisions related to Petitioner's claim of two unadopted "policies" are examined in turn. Denying reimbursement for clean claims The Handbook requires that providers submit a "clean claim" in order to be reimbursed for services (including BA services) to Medicaid recipients. See Original Pet., Ex. A, adopted by reference in Amended Pet., Ex. A at 1-4. Clean claims are those that: have been completed properly according to Medicaid billing guidelines; are accompanied by all necessary documentation required by federal law, state law, or state administrative rule for payment; and can be processed and adjudicated without obtaining additional information from the provider or from a third party. According to the Handbook, "[a] clean claim includes a claim with errors originating in the claim system." Id. By this provision, the Handbook codifies a recognition that errors will sometimes occur because of an issue originating within the claim system itself. According to PBS, despite the Handbook's assurance that clean claims will be paid, the AHCA/Tellus EVV system is rejecting clean claims that meet the Handbook's requirements. PBS did not quantify or otherwise characterize the frequency of rejected clean claims; it is unknown whether this happens occasionally, frequently, or all the time. Likewise, since PBS does not describe the claims that are rejected, it cannot be determined whether there is any common denominator characterizing the claims that it alleges are clean claims suffering rejection. However, for purposes of this Order, PBS's allegations are accepted as true: that some indeterminate number of clean claims are being rejected by the EVV system. According to PBS, "[t]he only even potential errors in these claims as submitted stem from issues with the EVV system itself." Amended Pet. at 4, ¶ 14. This scenario falls squarely within the Handbook provision recognizing that system-caused errors can occur. Not only does the Handbook codify the recognition that system errors can occur, but the Handbook also codifies a process, with an extended timeframe, for providers to fix claims denied due to system errors. Petitioner does not mention the following provision in its Handbook exhibit: "System Error[:] If a clean claim is denied due to a system error, a fiscal agent processing error, or any error that is the fault of Medicaid or the fiscal agent, an exception may be granted [to the time limit for filing claims] if the provider submits another clean claim along with documentation of the denial to the area Medicaid office no later than 12 months from the date of the original denial." Ex. A at 1-7 (emphasis added). These Handbook provisions should mean that, on a claim-by-claim basis, within 12 months of an improper denial of a clean claim, PBS's (or any other provider's) proof that it timely submitted a clean claim, but that an EVV system error caused the claim to be denied, would result in a determination that a "clean claim" was timely filed and it would be paid. As one example of an EVV system-created error, PBS alleges: In some instances, the EVV system (or some party who the Agency has granted access to it) [sic] is modifying claims post-submission, therefore rendering otherwise clean claims to be invalid.[5] The only opportunity that providers such as PBS have to correct such an improper modification prior to the reimbursement filing deadline is to personally monitor these submissions and attempt to manually restore them within the EVV system to their original status. Amended Pet. at 4-5, ¶ 14. In the same paragraph, Petitioner added the following: "This goes far beyond the process and puts providers such as PBS in jeopardy of having claims improperly denied if they do not have the time or resources to monitor and manually edit the system in this way. Remedying errors that the system itself has caused falls outside of the Agency's promulgated requirements for providers, and results in improper delay in reimbursement for their services." This allegation is not accepted as true; it is contradicted by the "System Error" Handbook provision quoted above in paragraph 18.6 While system errors are not ideal, and putting providers in the position of having to remedy 5 In Exhibit C, attached to the Original Petition and adopted by reference in the Amended Petition, Petitioner was more direct, asserting that "either Tellus or the EVV system itself are [sic] modifying claims post-submission, therefore rendering otherwise clean claims invalid." Ex. C at 4 (emphasis added). Thus, Petitioner's reference in the Amended Petition to "some party" is to Tellus, the vendor that developed and operates the EVV system. 6 Petitioner's allegations are properly considered together with the exhibits adopted by reference in the Amended Petition. Where, as here, the exhibit contradicts the allegation, the exhibit controls. See, e.g., Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994) ("When a party attaches exhibits to the complaint those exhibits become part of the pleading and the court will review those exhibits accordingly [in ruling on whether there are pleading deficiencies]. … The conclusions of the pleader, as to the meaning of the exhibits attached to the complaint, are not binding on the court. Exhibits attached to the complaint are controlling, where the allegations of the complaint are contradicted by the exhibits, the plain meaning of the exhibits will control.") (internal citations omitted); followed in Viverette v. State, Dep't of Transp., 227 So. 3d 1274, 1277 (Fla. 1st DCA 2017). The same principles apply in administrative proceedings. See Altee v. Duval Cty. Sch. Bd., 990 So. 2d 1124, 1129 (Fla. 1st DCA 2008) (in ruling on a motion to dismiss, the administrative law judge considers facts drawn from the petition, any amendments, and any incorporated attachments). system-caused errors is also not ideal, they are codified as part of the claims process in the promulgated Handbook. PBS alleges that it repeatedly made AHCA aware of the problem it is experiencing with having clean claims denied "throughout the past several months," but that up to this point, AHCA has not remedied this improper rejection of clean claims. PBS further alleges: "This is a generally occurring issue" for BA service providers in the Pilot Region, and "there is nothing specific to PBS that is causing its clean claims to be improperly denied." Amended Pet. at 5, ¶ 15. In new paragraph 16 in the Amended Petition, PBS added this allegation: Further, despite being made repeatedly aware of this problem, the Agency contends that the EVV system is functioning as intended. Although the Agency concedes that some technical issues with the system may have occurred previously, it incorrectly believes that all such issues have been resolved. The Agency has also taken the incorrect position that any provider having problems with the EVV system simply needs more training on how to use it. However, the industry-wide problems described herein stem from the system itself, not from a lack of training. Further, the Agency is so confident in the EVV system, as it currently exists, that the Agency has announced its intention to roll that system out statewide at some point this summer. Accordingly, the only even possible inference that can be drawn from the Agency's defense of the system and plan to expand it is that the EVV system as it is currently operating implements, interprets, or prescribes the Agency's policies, procedures, and/or practice requirements for EVV and claim reimbursement. (emphasis added). Denying ability to resubmit claims The Handbook provides a 12-month filing limit: "A clean claim for services rendered must be received by Medicaid or its fiscal agent no later than 12 months from the date of service." Accordingly, the Handbook encourages providers to submit claims immediately: "Medicaid providers should[7] submit claims immediately after providing services so that any problems with the claim can be corrected and the claim resubmitted before the [12-month] filing deadline." See Ex. A at 1-4. PBS characterized this Handbook provision as follows: "To the extent that providers may make inadvertent errors in submitting otherwise clean claims [i.e., claims that are not clean because of a provider-made error], the Handbook creates a process to remedy that. … [I]f a provider such as PBS promptly submits an ABA service reimbursement claim in the EVV system, then the Handbook grants it the legal right to resubmit that claim within a specified time period to fix any errors that might prevent payment." Amended Pet. at 6, ¶ 17. (As set forth in the Handbook at 1-4, the "specified time period" for correcting claims with provider-made errors is within 12 months from the date of service.) PBS described the claim resubmittal problem as follows: However, the Agency's EVV system is not allowing PBS and other providers [in the Pilot Region] to resubmit claims as permitted in the Handbook. Instead, it is deeming any such resubmitted claims to be duplicates of the originals, and then denying payment for that reason. Further, the EVV system has repeatedly gone down, been updated without notice, and otherwise failed to process resubmitted claims. Although technical glitches are generally understandable, the Agency has been repeatedly made aware of these problems, they have been ongoing, and the resulting delays have caused claims to be rejected without the opportunity to amend. The Agency has failed to or refused to 7 PBS inaccurately characterized this Handbook suggestion as a requirement, alleging that the Handbook requires that claims be submitted immediately so that problems can be corrected and claims resubmitted before the filing deadline. address this issue and that failure or refusal has served to negate providers' resubmission rights as promulgated in the Handbook. Amended Pet. at 6-7, ¶ 18. As with the first alleged policy, the following allegation was added regarding the second alleged policy, in paragraph 19 of the Amended Petition: Much like with the processing of claims, the Agency incorrectly contends that the EVV system is not preventing the resubmission and/or correction of claims and that any even potential issues result from a lack of training. Further, as stated, the Agency is preparing to drastically expand the scope of its EVV system despite being made repeatedly aware of these problems. Therefore, the only reasonable inference is that the EVV system in its present state implements, interprets, or prescribes the Agency's policies, procedures, and/or practice requirements for EVV and claim reimbursement. (emphasis added). What Petitioner does not allege Petitioner does not allege that AHCA has stated or adopted, as its position, that clean claims for BA services submitted through the EVV system shall be denied. Petitioner does not allege that AHCA has stated or adopted, as its position, that resubmittals of BA service provider claims to correct provider errors shall be rejected by the EVV system. Rather than alleging that these two problems are occurring because AHCA intends for them to be occurring—because AHCA's position is that clean claims must be denied and resubmittals must be rejected—Petitioner's new allegations in the Amended Petition admit that the opposite is true. Petitioner admits by its own allegations that AHCA believes that the EVV system had technical issues in the past, but that AHCA "incorrectly believes that all such issues have been resolved." Petitioner, itself, has alleged that AHCA "incorrectly believes," "incorrectly contends," and "has taken the incorrect position" that the EVV system is not improperly denying clean claims or preventing resubmission of corrected claims, and that any problems still being experienced are the result of user error, not caused by the EVV system. Petitioner alleges the opposite of AHCA policy statements.8 Petitioner plainly disagrees with AHCA's "incorrect" beliefs that EVV technical issues have been corrected, bristling at the suggestion that the problems are, in effect, user error that would be resolved by more training. But accepting Petitioner's allegations as true that AHCA is mistaken in its beliefs does not transform those mistaken beliefs into statements of policy that are the opposite of what AHCA mistakenly believes. By failing to allege that AHCA has asserted the positions that clean claims are to be denied and that attempts to resubmit claims are to be rejected, Petitioner has failed to allege agency statements. As admitted at the motion hearing and in its written response to the pending motion to dismiss, and as acknowledged in the new paragraphs added to the Amended Petition, Petitioner cannot allege that AHCA intends for these problems with the EVV system to occur. In fact, as Petitioner acknowledges, AHCA believes that the problems are a thing of the past and have been fixed.
The Issue The issue in this case is whether Respondent, Thomas Felix Diaz, has violated various provisions of the Florida Insurance Code as alleged in an Administrative Complaint dated March 26, 1992 and, if so, what disciplinary action should be imposed against his license as an insurance agent in Florida.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times relevant to this proceeding, Respondent was licensed in this state as a life insurance agent. Respondent is currently licensed as a life insurance agent, as a life and health insurance agent, and as a health insurance agent. At all times pertinent to this proceeding, Respondent was appointed to sell life insurance with Mass Indemnity and Life Insurance Company (MILICO) which has recently changed its name to Primerica Financial Services. In that capacity, all funds received by, from or on behalf of consumers, representing premiums for insurance policies, were trust funds received in a fiduciary capacity and were to be paid over to an insurer, insured, or other persons entitled thereto in the regular course of business. Sometime around March of 1991, the president of Delta Picture Frame Company ("Delta" or the "Company") of Miami decided to change the health insurance for two of his employees. The insurance was being provided at company expense. The prior policy included a small life insurance component as part of the coverage. The president of the Company contacted the MILICO agency to inquire regarding their group health policy and asked to see an agent. On or about March 18, 1991, Respondent accompanied another agent for MILICO, Nelson Barrera, to Delta's office to meet with the president of the Company. At the time of the meeting, Respondent was only licensed as a life insurance agent. He did not obtain his health and life license until approximately April 15, 1991. At the meeting, Barrera explained the coverage and price for health insurance. The president of Delta agreed to purchase the health insurance policies but never verbally expressed any interest in purchasing life insurance for his employees. In fact, he specifically rejected a proposed life and health insurance package stating that the company would only pay for health insurance. Respondent spoke separately with the employees. Applications for both life and health insurance were filled out and signed by the employees. The evidence was inconclusive as to whether life insurance was actually discussed with either of the employees. Only one of the employees testified at the hearing. She verified her signature on the application for life insurance, but she claims that she only discussed health insurance with the agents and did not knowingly apply for life insurance. The president of Delta signed the last page of the life insurance applications which authorized automatic withdrawals to pay MILICO for the life insurance policies. The circumstances surrounding the execution of the life insurance applications was not clearly established by the evidence.. However, the evidence was clear that the president of the Company never intended to purchase life insurance and never knowingly agreed to authorize bank withdrawals for life insurance. The evidence established that the president of the Company clearly indicated that the Company would only pay for health insurance and he never knowingly assented to the issuance of life insurance policies for the employees at company expense. When the president of the Company noticed that the bank records reflected withdrawals payable to MILICO, he inquired further and learned that the deductions were for life insurance. He immediately called Respondent who agreed to cancel the life insurance policies and provide a refund. Respondent was entitled to receive a commission of 75 percent of the first year's premiums for the sale of the life insurance policies to the employees of Delta.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a Final Order finding Respondent guilty of violating Section 626.621(6) and that Respondent's licenses be suspended for a period of three months, or, in lieu of a suspension, Respondent should be required to pay to the Department a fine of $500 and be placed on probation for a period of two years subject to such terms and restrictions as the Department may apply. RECOMMENDED this 3rd day of June 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June 1993.
The Issue The issue is whether the four "unwritten policy statements" challenged by Petitioner are rules that have not been adopted through the formal rulemaking procedures.
Findings Of Fact Petitioner is an insurance salesperson licensed under Chapter 626, Florida Statutes. Petitioner is the subject of an Administrative Complaint filed by the Department charging him with violations of various provisions of Chapter 626, Florida Statutes, in connection with his sale of viatical settlement contracts (viaticals) in 2002 and 2003. A final hearing in that case, DOAH Case No. 07-4701PL, was held on February 20, 2008, before Administrative Law Judge Chad C. Adams. The petition in this case challenges four "agency statements relating to an administrative complaint filed against [Petitioner] (and in complaints against others similarly situated) as applied by the Department " The challenged statements are summarized in the petition as follows: An unwritten policy statement that ownership interests in viatical settlement contracts sold in 2002 and 2003 are securities. An unwritten policy statement that ownership interests in viatical settlement contracts sold in 2002 and 2003 are required to be registered pursuant to Section 517.07, Florida Statutes. An unwritten policy statement that the Department defers to the Office of Financial Regulation in making decisions regarding whether viatical ownership interests are securities under Chapter 517, Florida Statutes. An unwritten policy statement that the Department will defers [sic] to another State of Florida agency, the Office of Financial Regulation, in deciding issues regarding viatical interests as securities under Chapter 517, Florida Statutes. The first two challenged statements are materially indistinguishable from statements challenged by Petitioner in DOAH Case No. 07-4746RU. The only difference is the addition of the words "[a]n unwritten policy statement that." The other two challenged agency statements were not challenged in DOAH Case No. 07-4746RU. According to the petition in this case, Petitioner first learned of these statements during the deposition of Barry Lanier. That deposition was taken in DOAH Case No. 07-4746RU on January 9, 2008. On January 25, 2008, Judge Adams entered a Summary Final Order in DOAH Case No. 07-4746RU, concluding that the statements challenged in that case are not rules because they were "pleadings within the Administrative Complaint intended to explain the interpretation provided by the agency concerning the meaning of provisions within Chapters 517 and 626, Florida Statutes, in effect when the alleged misconduct took place as described in the Administrative Complaint." The Summary Final Order explained that Petitioner would have the opportunity in DOAH Case No. 07-4701PL to pursue claims concerning the agency statements under Section 120.57(1)(e), Florida Statutes. On the same date that the Summary Final Order was entered, Judge Adams entered an Order striking the Third Affirmative Defense raised by Petitioner in DOAH Case No. 07-4701PL. That defense alleged that "[t]he Department's complaint is based in whole or part, upon 'agency statements' in violation of section 120.56(4), Florida Statutes, which have not been lawfully adopted pursuant to Section 120.54, Florida Statutes." The Order stated that it was entered "[w]ithout reference to Section 120.57(1)(e), Florida Statutes," because that statute was not mentioned in the affirmative defense, and the Order only precluded Petitioner from presenting the Third Affirmative Defense "as stated." Petitioner appealed the Summary Final Order in DOAH Case No. 07-4746RU to the First District Court of Appeal. The appeal is pending as Case No. 1D08-0581. The Department does not make the determination as to whether something is a security on its own; it defers to OFR when making the determination because OFR is the state agency responsible for regulatory activities relating to the securities industry. OFR and the Department make the determination as to whether something is a security on a case-by-case basis.4/
The Issue Whether the Respondent violated Chapter 626, Florida Statutes, by entering a plea of nolo contendere of grand theft of the third degree; whether he was placed on probation without an adjudication of guilt for grand theft of the third degree; and whether he lacks the fitness and trustworthiness to engage in the insurance business contrary to Chapter 626, Florida Statutes.
Findings Of Fact The Respondent, Ronald David Lewis, holds various licenses to sell insurance contracts issued by the Petitioner, which is charged by statutes to regulate licensees. The Respondent misappropriated over $10,000 from Audrey M. Walker, who was a client of the Respondent. The State's Attorney for the Seventh Judicial Circuit filed an information against the Respondent charging him with grand theft of the third degree. The Circuit Court Judge Shawn L. Briese entered an order of probation which reflects that the Respondent entered a plea of nolo contendere, and was placed on 60 months' probation by order withholding adjudication of guilt. The deposition of Audrey M. Walker establishes that the Respondent misappropriated funds from Ms. Walker, whose trust he had gained by virtue of his licensed status.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order revoking all the licenses Respondent holds to sell insurance contracts. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 9th day of March, 2001. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Ronald David Lewis 3800 South Atlantic Avenue Apartment 304 Daytona Beach, Florida 32127 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
