11-001089 Trinidad Figuerade Rojas, M.D. vs. Department Of Health
 Status: Closed
Recommended Order on Tuesday, May 31, 2011.


View Dockets  
Summary: Because Petitioner had been terminated for cause from the Florida Medicaid program, the Department was barred, by section 456.0635(2)(b), from renewing her medical license,

1Final Order No, DOH-II.lnf. fO;:;"-MQ

8FILED DATE - -26 ( I

14Department of Health

17STATE OF

19DEPARTMENT OF

21'-Uil .JUL 2q A II: 30

27Trinidad Figuera De

30Rojas, h I .t;;{Y;'

36Peti tioner, DOAH proceecllnquRo. : 11-1089

42v. ME license no.: 39631

47Department of Health,

50Division of Medical

53Quality Assurance,

55Respondent.

56FINAL ORDER

58This matter is before the Department of Health (Department)

67for consideration of the recommended order 1 filed in this

77proceeding. Trinidad Figuera De Rojas is referred to herein

86as either the Petitioner or Dr. Rojas.

93At issue is the Department's "Notice of Intent to Deny

103Renewa1 2 " of Dr. Roj as' license to practice as a medical

115doctor 3 • The basis of the intent to deny renewal of

127licensure is her termination for cause as a Medicaid

136provider. See Medicaid fraud; disqualification for license,

143certificate, or registration, section 456.0635(2) (b),

149Florida Statutes. The Administrative Law Judge

155(hereinafter the ALJ) recommends that the application for

163renewal of licensure be denied. Dr. Rojas filed exceptions

172to the recommended order, and the Department filed its

181response.

182StandaI:d for Reviewing Exceptions 4

187In considering exceptions to findings of fact of a recommended

197order, the general rule of deference is that an agency may reject or

210The Recommended Order entered on May 31, 2011, by Administrative Law

221Judge Stuart M. Lerner, is attached as exhibit A.

2302 The intent to deny renewal is incorporated by reference as exhibit D.

243See Medical Practice, chapter 458, Florida Statutes.

2504 The Petitioner's exceptions and the Department's response are

259attached as exhibits Band C, respectively.

265Trinidad Figuera De Rojas, page 2 of 4,

273Final Order, DOAH case no.: 11-1089.

279modify a finding of fact only if the challenged finding is not

291supported by competent, substantial evidence in the record of the

301adjudicatory proceeding. In contrast to the fact finding, an agency

311need not defer to an interpretation of statute or rule over which the

324agency has substantive jurisdiction. Section 120.57 (1) (l), Florida

333Statutes.

334Exception number one maintains that the ALJ erred in treating

344the termination letter from Medicaid as notice of intent to

354terminate, as opposed to an immediate termination. The ALJ has

364merely recognized the important distinction between an agency staff's

373decision, and an agency's decision made in a final order resulting

384from an adjudicatory proceeding under the Administrative Procedure

392Acts. The initial decision, also known as the "free-form decision"

402is a decision by an agency's staff, which has ripened to the point

415where written notice to the substantially affected person must be

425given, along with notice of the right to contest the initial decision

437by initiating an adjudicatory proceeding under 120.569 and 120.57.

446See e.g., Capeletti Brothers v. Dept. of Transportation, 362 So.2d

456346 (Fla. 1st DCA 1978) (Free-form proceedings are the "every day"

467way, i.e. letter, permit, or memo; by which an agency memorializes

478its regulatory decision, as distinguished from a final order issued

488in an adjudicatory proceeding under the Administrative Procedure

496Act.). The ALJ explains at length his conclusion in footnote number

50715. I concur. Accordingly, exception number one is denied.

516Exception number two objects to the ALJ's conclusion regarding

525the application of the section 456.0635 to an application for renewal

536of licensure by a doctor who was terminated from Medicaid before the

548effective date of the statute requiring denial of renewal. The ALJ's

559conclusion is fully supported by the opinion of the Third District

570Court of Appeal in Alliance Nursing Care v. Agency for Healthcare

5815 Chapter 120, Florida Statutes.

586Trinidad Figuera De Rojas, page 3 of 4,

594Final Order, DOAH case no.: 11-1089.

600Administration, appeal no. 3D10 -1994, (Fla. 3 m DCA of June 29,

6122011) 6 • Accordingly, exception number two is denied.

621Exception number three objects to the AI..J's conclusion that the

631DepartITEnt proved by clear and convincing evidence the Petitioner's

640termination for cause from the Medicaid program. It is the role of

652the AI..J as fact finder in an adjudicatory proceeding to weigh

663conflicting evidence, to resolve conflicts in the evidence, to judge

673the credibility of witnesses, and to draw permissible inferences from

683the evidence. Correlatively, an agency has no authority to reweigh

693the evidence. See e.g. Heifetz v. Dept. of Bus. Regulation, 475

704So.2d 1277,1281, (Fla. 1& 1985). The AdrrUnistrative Law Judge's

714findings of fact are entitled to as much weight and respect as the

727verdict of a jury. See Gnman v. Dept. of Revenue, 379 So.2d 1313,

7401316 (Fla. 2 m DCA 1980). There is anple support in the record for

754the AI..J' s conclusion . Accordingly, exception nunber three is denied.

765I concur with the AI..J's recornnendation that Dr. Rojas'

774application for renewal of licensure must be denied on the basis of

786section 456. 0635 (2) (b), Florida Statutes. A factual basis for Dr.

798Rojas' termination for cause as a Medicaid provider having been

808established, the statute leaves no room for discretion by the

818. Departrrent. Accordingly, the Recomnended Order of May 31, 2011, is

829adopted and incorporated by reference.

834Based on the foregoing, Dr. Rojas' application for

842renewal of her license to practice medicine in the State of

853Florida is denied.

856DONE and ORDERED this day of July 2011 in

865Tallahassee, Leon County, Florida.

8696 See Hernande:z: v. Dept. of State, 629 So.2d 205 (Fla. 3 rd DCA 1993),

884rev. den. 640 So.2d 1107 (Fla. 1994) (The Court rejects a constitutional

896challenge to a statute which commands a state agency to revoke a

908license for conduct which was not disqualifying when the license was

919issued.), see also, st W.M. v. Dept. of Health and Rehab. Services, 274

932So.2d 553 (Fla. 1 DCA 1989), rev. den. 564 So.2d 490 (Fla. 1990).

945Trinidad Figuera De Rojas, page 4 of 4,

953Final Order, DOAH case no.: 11-1089.

959H. Frank Farmer, Jr., MD, PhD, FACP

966state Surgeon General

969By:

970NOTICE

971A PARTY ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW

984PURSUANT TO SECTION 120. 68, FLORIDA STATUTES. A REVIEW PROCEEDING IS GOVERNED

996BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH A PROCEEDING IS CCIvlMENCED

1008BY FILING A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF HEALTH AND A

1024COpy ACCCMPANIED BY THE FILING FEE REQUIRED BY LAW WITH THE DISTRICT COURT OF

1038APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES OR THE FIRST

1050DISTRICT COURT OF APPEAL. THE NOTICE MUST BE FILED WITHIN 30 DAYS OF FILING

1064DATE OF THIS FINAL ORDER.

1069Copy furnished to each of the following:

1076Morris Shelkofsky, Esquire Sean M. Ellsworth, Esquire

1083Department of Health Ellsworth Law Firm

10894052 Bald Cypress Way, bin A-02 1501 Collins Avenue

1098Tallahassee, Florida 32399-1703 Suite 208

1103Miami Beach, Florida 33139

1107Suart M. Lerner

1110Administrative Law Judge Joy Tootle, Exec. Director

1117Division of Administrative Board of Medicine

1123Hearings 4052 Bald Cypress Way, bin C-03

11301230 Apalachee Parkway Tallahassee, Florida 32399-3253

1136Tallahassee, Florida 32399-3060

1139CERTIFICATE OF SERVICE

1142I CERTIFY that a copy of the foregoing FINAL ORDER has

1153been served by ordinary mail via the United States Postal

1163Service, inter-office mail, electronic transmission, or by

1170hand delivery to each of the above-named persons this

1179day of JUly 2011.

1183Deputy Agency Clerk

1186Department of Health

11894052 Bald Cypress Way, bin C-01

1195Tallahassee, Florida 32399-3251

1198phone: (850)245-4120

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/29/2011
Proceedings: DOH's Responses to Petitioner's Exceptions to the Administrative Law Judge's Recommended Order filed.
PDF:
Date: 07/29/2011
Proceedings: Dr. Trinidad Figuera Rojas's Exceptions to Administrative Law Judge Recommended Order filed.
PDF:
Date: 07/29/2011
Proceedings: Agency Final Order filed.
PDF:
Date: 07/27/2011
Proceedings: Agency Final Order
PDF:
Date: 05/31/2011
Proceedings: Recommended Order
PDF:
Date: 05/31/2011
Proceedings: Recommended Order (hearing held May 3, 2011). CASE CLOSED.
PDF:
Date: 05/31/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/23/2011
Proceedings: Trinidad Figuera De Rojas, M.D.'s Proposed Recommended Order filed.
PDF:
Date: 05/23/2011
Proceedings: Notice of Service of DOH's Proposed Recommended Order filed.
PDF:
Date: 05/12/2011
Proceedings: Notice of Filing Transcript.
Date: 05/11/2011
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 05/03/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/28/2011
Proceedings: Notice of Service of DOH's Answers to Interrogatories filed.
PDF:
Date: 04/28/2011
Proceedings: Notice of Service of DOH's Responses to Request for Production filed.
Date: 04/28/2011
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
Date: 04/28/2011
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 04/22/2011
Proceedings: Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 04/21/2011
Proceedings: Respondent's Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 04/11/2011
Proceedings: Order on Pending Motions.
Date: 04/08/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 04/06/2011
Proceedings: Dr. Trinidad Figuera De Rojas's Motion for Order Prohibiting Department of Health from Applying Section 456.0635, Florida Statues, Retroactively and Prohibiting Board of Medicine from Denying Dr. Rojas's License Renewal Based Upon Prohibited Retroactive Application of Section 456.0635 filed.
PDF:
Date: 03/25/2011
Proceedings: Trinidad Figuera De Rojas, M.D.'s Motion to have Florida Department of Health Deemed Petitioner and for Declaration that Department Must Prove Its Allegations By Clear and Convincing Evidence filed.
PDF:
Date: 03/17/2011
Proceedings: Notice of Serving Request for Production filed.
PDF:
Date: 03/17/2011
Proceedings: Trinidad Figuera De Rojas, M.D.'s Notice of Serving First Set of Interrogatories filed.
PDF:
Date: 03/07/2011
Proceedings: Order Directing Filing of Exhibits
PDF:
Date: 03/07/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/07/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for May 3, 2011; 9:00 a.m.; Port St. Lucie and Tallahassee, FL).
PDF:
Date: 03/04/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 03/01/2011
Proceedings: (Agency Final Order, AHCA Case No. 09-4276MPI) filed.
PDF:
Date: 03/01/2011
Proceedings: Trinidad Figuera De Rojas, M.D.'s Response to Status Order filed.
PDF:
Date: 03/01/2011
Proceedings: Initial Order.
PDF:
Date: 03/01/2011
Proceedings: Status Order filed.
PDF:
Date: 03/01/2011
Proceedings: Notice of Intent to Deny Renewal filed.
PDF:
Date: 03/01/2011
Proceedings: Notice of Appearance and Petition for Formal Administrative Hearing filed.
PDF:
Date: 03/01/2011
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
03/01/2011
Date Assignment:
03/01/2011
Last Docket Entry:
07/29/2011
Location:
Port St. Lucie, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (18):