11-001728 Marly Delis Cueto vs. Department Of Health, Board Of Physical Therapy Practice Status: Closed Recommended Order on Thursday, September 29, 2011.

Summary: Agency did not have the authority to deny the renewal of physical therapist's license where licensee did not file a renewal application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLY DELIS CUETO, )

)

Petitioner, )

)

vs. ) Case No. 11 - 1728

)

DEPARTMENT OF HEALTH, BOARD OF )

PHYSICAL THERAPY PRACTICE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

August 19, 2011, by video telecon ference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: James M. Barclay, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

106 East College Avenue, Suite 600

Tallahassee, Florida 32156

Javier Talamo, Esquire

Kravitz & Talamo, LLP

7600 West 20th Avenue, Suite 213

Hialeah, Florida 33016

For Respondent: Morris Shelkofsky, Esquire

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

Whether Respondent should take final action to deny the

renewal of Petitioner's license to practice physical therapy on

the ground that Petitioner has been terminated for cause from

the Florida Medicaid program, as proposed in Respondent's

December 16, 200 9, Notice of Intent to Deny Renewal .

PRELIMINARY STATEMENT

On December 16, 2009, Respondent issued a Notice of Intent

to Deny Renewal of Petitioner's license to practice physical

therapy (December 16, 2009, Notice), the body of which read as

follows:

Under section 456.0635, Florida Statutes, a

license to practice a health care profession

may not be renewed under certain

circumstances. The Florida Department of

Health has reason to believe that you have

been terminated for cause from the Florida

Medicaid pr ogram under section 409.913,

Florida Statutes.

WHEREFORE, the determination was made to

DENY your eligibility to renew your license.

The December 16, 2009, Notice, which was mailed to Petitioner on

December 17, 2009, was accompanied by a Notice of Right to

Hearing, which advised Petitioner of her right to a hearing on

the intended action and further advised her that the intended

action would "constitute[] final agency action if no request for

a hearing [was] received on or before the 21st day after

[Petit ioner's] receipt of th[e] [N]otice."

On January 8, 2010, Petitioner, through counsel, filed a

Petition for Formal Administrative Hearing (Petition),

requesting that Respondent " refer [the Petition] to the Division

of Administrative Hearings for the holdin g of a hearing and the

issuance of a recommended order favorable to Petitioner"

finding: " that section 456.0635 does not permit a license to

practice a health care profession to not be renewed under

circumstances as alleged[;] that [Petitioner] was not te rminated

for cause from the Florida Medicaid Program under section

409.913[;] that the Board may not deny renewal of a physical

therapy license absent an application[;] that [Respondent]

utilized unadopted rules in the allegations in the Board

Notice[;] [a nd] that [Respondent] has not treated substantially

similar licensees in the same manner." The matter was referred

to DOAH, as requested, but not until April 11, 2011 , and was

docketed as DOAH Case No. 11 - 1728.

At the time of the referral, there were alre ady two cases

involving Petitioner and Respondent pending before DOAH: DOAH

Case Nos. 11 - 1271PL and 11 - 1272PL. The final hearing in these

two license disciplinary cases, which had been consolidated, was

set for May 17, 2011. DOAH Case No. 11 - 1271PL conc erned a two -

count Administrative Complaint issued October 21, 2009, against

Petitioner, alleging that she had been convicted of a crime

directly relating to the practice of physical therapy, and that

she had failed to report this conviction as required. D OAH Case

No. 11 - 1272PL concerned a single - count Administrative Complaint

issued April 21, 2010, against Petitioner, alleging that

Petitioner was subject to disciplinary action pursuant to

sections 456.072(1)(kk) and 486.125(1)(k), Florida Statutes

(2009), because, "[o]n October 6, 2009, [the Agency for Health

Care Administration had] entered a Final Order against [her]

terminating her for cause from the Florida Medicaid program

pursuant to Section 409.913, Florida Statutes," and her

eligibility to participa te in the program had not been restored.

On April 26, 2011, Petitioner filed an Agreed Motion to

Continue, requesting that the final hearing in the instant case

not be held until DOAH Case Nos. 11 - 1271PL and 11 - 1272PL were

decided "because moving forward i n this case depends on the

outcome in [DOAH] [C]ase[] [Nos.] 11 - 1271[PL] and 11 - 1272[PL]."

On May 4, 2011, the previously assigned administrative law judge

issued an Order Placing Case in Abeyance in the instant case.

The Order directed the parties to " c onfer and advise the

[administrative law judge] in writing no later than one week

after the recommended orders are entered in DOAH Case Nos.

11 - 1271PL and 11 - 1272PL, as to the status of this matter and as

to the length of time required for the final heari ng in this

cause and several mutually - agreeable dates for scheduling the

final hearing should one be necessary."

On July 19, 2011, the administrative law judge in DOAH Case

Nos. 11 - 1271PL and 11 - 1272PL issued a Recommended Order, in

which he made the follo wing "[r]ecommendation":

Based on the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that

the Board of Physical Therapy Practice enter

a final order finding Marly Delis Cueto

guilty of the offense described in section

486.125(1)(c), Florida Statutes, i.e., being

convicted of a crime that directly relates

to the practice of physical therapy; guilty

of the offense defined in section

456.072(1)(x), namely failing to timely

report a criminal conviction to the Board;

and guilty of the offe nse defined in section

486.125(1)(k), in consequence of having been

terminated from the Medicaid program, which

latter constitutes a disciplinable offense

under section 456.072(1)(kk). It is further

RECOMMENDED that the Board impose an

administrative fine of $14,000 and suspend

Cueto's physical therapy license for two

years, to be followed by two years of

probation on such reasonable terms and

conditions as the Board establishes, which

may include the requirement that Cueto pay

in full the $28,000 she has been ordered to

remit to AHCA as restitution of the stolen

funds.[ 2 ]

The Recommended Order contained the following Findings of Fact

and Conclusions of Law pertaining to the charge that Petitioner

had been terminated for cause from the Florida Medicaid pro gram:

FINDINGS OF FACT

7. On September 30, 2009, AHCA entered a

Final Order terminating Cueto from

participation as a provider in the Florida

Medicaid program. AHCA imposed this

sanction against Cueto pursuant to Florida

Administrative Code Rule 59G - 9.0 70(8)

(2008) ÏÏ as it was authorized to do under

section 409.913(13), Florida Statutes

(2009) ÏÏ because she had been convicted of

grand theft on November 5, 2008. As of the

final hearing in this case, Cueto had not

been reenrolled as a Medicaid provider.

* * *

18. In the Administrative Complaint which

initiated Case No. 11 - 1272PL, the Department

charged Cueto under section 456.072(1)(kk),

Florida Statutes (2009), which provides:

Being terminated from the state Medicaid

program p ursuant to s. 409.913, any other

state Medicaid program, or the federal

Medicare program [shall constitute

grounds for discipline], unless

eligibility to participate in the program

from which the practitioner was

terminated has been restored.

Cueto was in fact terminated from the state

Medicaid program pursuant to section

409.913, and she had not been reenrolled

therein at the time of the final hearing in

this case. She is therefore guilty of the

offense defined in section 456.072(1)(kk),

Florida Statutes (2009).

19. Cueto contends that she was not

terminated from Medicaid "for cause" as the

Department has alleged. Section

456.072(1)(kk) does not require, as a

prerequisite to imposing discipline, that

the Medicaid provider have been terminated

for cause . Nevertheless, Cueto was

terminated for cause, that being her

conviction for grand theft, which crime

relates to the practice of physical therapy.

At the time AHCA terminated Cueto's

participation as an enrolled provider, the

penalty guidelines then in effect for

violations of Medicaid - related laws required

that the sanction of termination be imposed

for a violation of section 409.913(13)(b),

which statute directs AHCA to immediately

terminate the participation of a Medicaid

provider who has been convict ed of a crime

relating to the practice of the provider's

profession. See Fla. Admin Code R. 59G -

9.070(8)(a)2. (2008). The same rule defined

"termination" as "a twenty - year preclusion

from any action that results in a claim for

payment to the Medicaid pro gram as a result

of furnishing, supervising a person who is

furnishing, or causing a person to furnish

goods or services." Fla. Admin Code R. 59G -

9.070(2)(y).

20. The Department might have alleged that

Cueto's termination had been for cause

because unde r the Board's current

disciplinary guidelines, which took effect

on June 30, 2010, a termination for cause

from the Medicaid program warrants a harsher

penalty than does a termination "not . . .

for cause." Fla. Admin. Code R. 64B17 -

7.001(1)(ff)(2010). A lthough this Board

rule does not define "cause," AHCA's current

disciplinary guidelines, which became

effective on September 7, 2010, provide that

a "termination pursuant to this rule is also

called a 'for cause' or 'with cause'

termination." Fla. Admin. Code R. 59G -

9.070(3)(p)(2010). Neither rule, however,

applies in this case, which must be decided

under the disciplinary guidelines in effect

at the time the offense was committed. See

Orasan v. Ag. for Health Care Admin. , 668

So. 2d 1062, 1063 (Fla. 1st DCA 1996);

Willner v. Dep't of Prof'l Reg. , 563 So. 2d

805, 806 (Fla. 1st DCA 1990).

23. Cueto was terminated from the Medicaid

program in September 2009. Rule 64B17 - 7.001

(2007), which was in effect at that time,

does not prescribe a punishment for the

offense defined in section 456.072(1)(kk),

Florida Statutes (2009). Cueto can be

sanc tioned for this offense, however,

through section 486.125(1)(k), Florida

Statutes (2009), which, as the Department

alleged in the Administrative Complaint,

provides that a violation of chapter 456 is

grounds for discipline.

24. Under the disciplinary gu idelines in

effect in September 2009, the range of

penalties for a first offense involving

section 486.125(1)(k) is "from a minimum

fine of $1,000 and/or a letter of concern,

up to a maximum fine of $5,000 and/or

suspension of license for two years followe d

by two years of probation." Fla. Admin.

Code R. 64B17 - 7.001(1)(x)(2007).

(A final order has yet to be issued in DOAH Case Nos. 11 - 1271PL

and 11 - 1272PL. Pursuant to section 120.569(2)(l)2., Florida

Statutes, one must be issued no later than October 17, 2011.)

On July 26, 2011, the parties filed a Joint Status Report

in the instant case, advising that "th[is] matter is still

unresolved" and a one - day hearing would be necessary.

As noted above, the final hearing in this case was held on

August 19, 2011. Two witnesses, Michael West and Petitioner,

testified at the hearing. In addition to Mr. West's and

Petitioner's testimony, three exhibits (Petitioner's Exhibit 1,

and Respondent's Exhibits 1 and 2) were offered and received

into evidence.

With input fro m the parties, the undersigned set the

deadline for the filing of proposed recommended orders at 20

days from the date of the filing of the hearing transcript with

DOAH.

The hearing Transcript, consisting on one volume, was filed

with DOAH on September 6, 2011. Both parties timely filed their

Proposed Recommended Orders on September 26, 2011.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Petitioner is now, and has been at all times material

to the instant case, a Florida - licensed physical therapist.

Petitioner has not applied to renew her license, which is due to

expire on November 30, 2011.

2. Petitioner formerly participated as a provider in the

Florida Medicaid program .

3. On July 20, 2009, the Agency for Health Care

Administration (AHCA) sent Petitioner a letter, advising her (in

the letter's first paragraph) of the following:

Our records indicate that you were convicted

on November 5, 2008 [of] grand theft. In

accor dance with Sections 409.913, Florida

Statutes (F.S.), and Rule 59G - 9.070, Florida

Administrative Code (F.A.C.), the Agency for

Health Care Administration (Agency) is

hereby terminating your participation in the

Medicaid program. This includes any action

t hat results in a claim for payment to the

Medicaid program as a result of furnishing,

supervising a person who is furnishing, or

causing a person to furnish goods or

services.

The letter further advised Petitioner that she had the right to

request an admi nistrative hearing on this "intended action"

within 21 days of her receipt of the letter and that, if she

failed to timely exercise this right, "the action set forth in

the [letter would] be conclusive and final."

4. Not having received a hearing request from Petitioner,

AHCA, on October 6, 2009, issued a Final Order (AHCA's Final

Order) terminating Petitioner from the Florida Medicaid program.

The body of AHCA's Final Order provided as follows:

THIS CAUSE is before me for issuance of a

Final Order. In a letter dated July 20,

2009, Marly Cueto (Respondent) was informed

that the State of Florida, Agency for Health

Care Administration (Agency) was imposing a

sanction of termination from participation

in the Florida Medicaid program pursuant to

Rule 59G - 9.07 0, Florida Administrative Code.

Pursuant to Section 409.913(6), Florida

Statutes, the letter was sent to Respondent

at the address last shown on the provider

enrollment file. The letter contained full

disclosure and notice regarding Respondent's

administrative hearing and due process

rights. To date, Respondent has not

requested a hearing to dispute the facts

contained in the letter; and, the timeframe

within which Respondent had to request a

hearing has expired.

FINDINGS OF FACT

1. A letter was sent to Respondent at the

address last shown on the provider

enrollment file that imposed a sanction of

termination from participation in the

Florida Medicaid program pursuant to Rule

59G - 9.070, Florida Administrative Code.

2. The letter disclosed t he Respondent's

administrative and due process rights.

3. The Respondent has not disputed

imposition of the sanction as set forth in

the letter.

CONCLUSIONS OF LAW

4. The Agency incorporate[s] and adopts the

statements and conclusions of law as set

fo rth in the aforementioned letter.

5. The sanction as set forth in the letter

is final

ORDER

BASED on the foregoing, it is ORDERED and

ADJUDGED that Respondent is terminated from

participation in the Florida Medicaid

program pursuant to Rule 59G - 9.070, Florida

Administrative Code.

Appended to the body of AHCA's Final Order was a notice of

Petitioner's right to seek judicial review of the Order and a

certificate certifying that the Order had been served on

Petitioner by United States Mail.

5. Petitioner did not appeal AHCA's Final Order.

6. In its December 16, 2009, Notice, Respondent has cited

Petitioner's termination from the Florida Medicaid program,

which was effectuated by AHCA's Final Order, as the reason it

intends to deny the renewal of Petition er's license to practice

physical therapy.

7. Petitioner has applied to reenroll in the Florida

Medicaid program. Her application is pending.

CONCLUSIONS OF LAW

8. Respondent is a creature of statute, specifically

section 20.43(3)(g)26., Florida Statute s. As such, it has only

that authority the Legislature has delegated to it, and it must

exercise that delegated legislative authority within, and not

stray beyond, the boundaries and parameters established by the

Legislature. See Cape Coral v. GAC Utils. , Inc. , 281 So. 2d

493, 495 - 496 (Fla. 1973)("All administrative bodies created by

the Legislature are not constitutional bodies, but, rather,

simply mere creatures of statute. This, of course, includes the

Public Service Commission. As such, the Commissi on's powers,

duties and authority are those and only those that are conferred

expressly or impliedly by statute of the State.")(citations

omitted); Ocampo v. Dep't of Health , 806 So. 2d 633 (Fla. 1st

DCA 2002) ("An agency can only do what it is authorized to do by

the Legislature."); Fla. Dep't of Ins. v. Bankers Ins. Co. , 694

So. 2d 70 (Fla. 1st DCA 1997)("In determining the extent of an

agency's authority or jurisdiction, we start with the

proposition that agencies are creatures of statute. Their

legitim ate regulatory realm is no more and no less than what the

Legislature prescribes by law."); Schiffman v. Dep't of Prof'l

Reg., Bd. of Pharmacy , 581 So. 2d 1375, 1379 (Fla. 1st DCA

1991)("An administrative agency has only the authority that the

legislature has conferred it by statute."); and Gardinier, Inc.

v. Fla. Dep't of Pollution Control , 300 So. 2d 75, 76 (Fla. 1st

DCA 1974)("It has long been established law that a statutory

agency possesses no inherent powers. Its powers are derivative

only, depending upon the statute by which it is created. Its

powers are limited to those granted, either expressly or by

necessary implication, by the statute of its creation.").

9. In determining where the bounds of its statutory

authority lie, Respondent must striv e to ascertain what the

Legislature intended in this regard. Cf. Larimore v. State , 2

So. 3d 101, 106 (Fla. 2008) ("A court's purpose in construing a

statute is to give effect to legislative intent, which is the

polestar that guides the court in statutory construction.").

"Legislative intent must be derived primarily from the words

expressed in the statute [in question]. If the language of the

statute is clear and unambiguous," these words must be given

effect. Dep't of Rev. v. Fla. Mun. Power Agency , 7 89 So. 2d

320, 323 (Fla. 2001). Where there is such clarity and lack of

ambiguity, "there is no reason to resort to rules of statutory

construction." 3 Gervais v. City of Melbourne , 890 So. 2d 412,

414 (Fla. 5th DCA 2004); see also State v. Jett , 626 So. 2d 691,

693 (Fla. 1993)("It is a settled rule of statutory construction

that unambiguous language is not subject to judicial

construction, however wise it may seem to alter the plain

language."); Fla. Dep't of Children & Family Servs. v. P. E. , 14

So. 3d 2 28, 234 (Fla. 2009) ("Legislative intent guides

statutory analysis, and to discern that intent we must look

first to the language of the statute and its plain meaning.

Where the statute's language is clear or unambiguous, courts

need not employ principles of statutory construction to

determine and effectuate legislative intent.") (citation

omitted); and Metro. Cas. Ins. Co. v. Tepper , 2 So. 3d 209, 213

(Fla. 2009) ("When a statute's language is plain and

unambiguous, there can be no resort to statutory

con struction.").

10. Regardless of Respondent's views regarding the wisdom

or legal propriety of the choices the Legislature has made in

defining the scope of Respondent's authority (as expressed in

the statutory provisions the Legislature has enacted),

Resp ondent is obligated to respect, and act in accordance with,

these legislative choices and to not ignore or disregard them.

See Palm Harbor Special Fire Control Dist. v. Kelly , 516 So. 2d

249, 250 (Fla. 1987) ("[I]t is axiomatic that an administrative

agen cy has no power to declare a statute void or otherwise

unenforceable."); State v. Bales , 343 So. 2d 9, 11 (Fla. 1977)

("Questions as to wisdom, need or appropriateness [of a

legislative enactment] are for the Legislature."); and Barr v.

Watts , 70 So. 2d 34 7, 351 (Fla. 1953) ("The people of this state

have the right to expect that each and every such state agency

will promptly carry out and put into effect the will of the

people as expressed in the legislative acts of their duly

elected representatives. The state's business cannot come to a

stand - still while the validity of any particular statute is

contested by the very board or agency charged with the

responsibility of administering it and to whom the people must

look for such administration.").

11. Among the powers the Legislature has delegated to

Respondent is the authority to issue licenses permitting

physical therapists to practice physical therapy in the State of

Florida, which licenses must be renewed every two years.

§§ 456.004(1) and 486.085(2), Fl a. Stat.

12. Through the enactment of section 456.0635(2)(b) (by

section 24 of chapter 2009 - 223, Laws of Florida), the

Legislature has made the choice (clearly expressed by the plain

and unambiguous language of the statute) to limit Respondent's

exercise of this authority by prohibiting Respondent, starting

July 1, 2009, 4 the effective date of the statute, from issuing an

initial or renewal physical therapist license to "any

applicant . . . who has been: [t]erminated for cause from the

Florida Medicaid p rogram pursuant to s. 409.913,[ 5 ] unless the

applicant has been in good standing with the Florida Medicaid

program for the most recent 5 years." 6 Respondent must "refuse

to issue or renew a license" sought by such an applicant. It is

powerless to carve out any exception to section 456.0635(2)(b)

and license a physical therapist that the Legislature, in that

statutory provision, has made ineligible for licensure, however

wise or just it might seem to Respondent to take such action.

See Cortes v. Bd. of Regents , 655 So. 2d 132, 136 (Fla. 1st DCA

1995) ("The legislature may authorize administrative agencies to

interpret, but never to alter statutes.") (citations omi tted);

and Commercial Coating v. Dep't of Envtl. Reg. , 548 So. 2d 677,

679 (Fla. 3d DCA 1989) ("Administrative agencies entrusted with

authority to carry out statutory provisions are similarly

prohibited from giving the statute an amendatory

construction." ).

13. That being said, not every termination from the

Florida Medicaid program is fatal, under section 456.0635(2)(b),

to Respondent's ability to exercise its licensure authority.

Only those terminations that are "for cause . . . pursuant to s.

409.913" can have such a lethal consequence. A termination is

"for cause" if it is "based on some fault or shortcoming of the

person being [terminated]." In re Brookover , 352 F.3d 1083,

1087 (6th Cir. 2003). A physical therapist who has been

terminated from the Florida Medicaid program pursuant to section

409.913(13)(b) 7 for having been "[c]onvicted of a criminal

offense under federal law or the law of any state relating to

the practice of [physical therapy]" (as has Petitioner) has been

terminated "for cause . . . pursuant to s. 409.913" and,

consequently, is not a physical therapist to whom Respondent may

grant an initial or renewal license, unless the physical

therapist has been reinstated to the program and "been in good

standing . . . for the most recent 5 y ears."

14. A licensed physical therapist seeking the renewal of

his or her license must submit to Respondent an application for

renewal, accompanied by the appropriate renewal fee ($75.00 for

an active license and $50.00 for an inactive license or a

retir ed license). § 486.085(1); and Fla. Admin. Code R. 64B17 -

2.005(1) - (3). "A license which is not renewed at the end of the

biennium as prescribed by the Department[ 8 ] shall automatically

revert to delinquent status. Delinquent status automatically

revokes the privilege to practice in Florida. The delinquency

fee is $55.[00]." Fla. Admin. Code R. 64B17 - 2.005(4). The

"[f]ailure by a delinquent licensee to become active or inactive

before the expiration of the current licensure cycle renders the

license nu ll without further action by [Respondent]." Fla.

Admin. Code R. 64B17 - 2.005(8).

15. Should a licensee make a "sufficient application for

the renewal of [his or her] license" prior to the "end of the

biennium" period, the "license shall not expire until t he

application for renewal has been finally acted upon by

[Respondent] or, in case the application is denied or the terms

of the license are limited, until the last day for seeking

review of the [final] agency order or a later date fixed by

order of the re viewing court." § 120.60(4).

16. If Respondent is presented with an application for the

renewal of a license that it believes it is without authority to

grant because the application is from a section 456.0635(2)(b) -

disqualified physical therapist, Respo ndent must, before taking

final action on the application, comply with the notice

requirements of section 120.60(3), which provides, in pertinent

part, as follows:

Each applicant shall be given written

notice, personally or by mail that the

agency intends to . . . deny . . . the

application for license. The notice must

state with particularity the grounds or

basis for . . . denial of the

license . . . . Unless waived, a copy of

the notice shall be delivered or mailed to

each party's attorney of record an d to each

person who has made a written request for

notice of agency action. Each notice must

inform the recipient of the basis for the

agency decision, inform the recipient of any

administrative hearing pursuant to ss.

120.569 and 120.57 or judicial revi ew

pursuant to s. 120.68 which may be

available, indicate the procedure that must

be followed, and state the applicable time

limits. The issuing agency shall certify

the date the notice was mailed or delivered,

and the notice and the certification must be

filed with the agency clerk.

17. At any administrative hearing held on the matter,

Respondent bears the burden of proving that the applicant "has

been: [t]erminated for cause from the Florida Medicaid program

pursuant to s. 409.913." See Dep't of Bank ing & Fin., Div. of

Secs. & Investor Prot. v. Osborne Stern and Co. , 670 So. 2d 932,

934 (Fla. 1996) ("'The general rule is that a party asserting

the affirmative of an issue has the burden of presenting

evidence as to that issue.'"); M. H. v. Dep't of Chi ld. & Fam.

Servs. , 977 So. 2d 755, 761 (Fla. 2d DCA 2008) ("[I]f the

licensing agency proposes to deny the requested license based on

specific acts of misconduct, then the agency assumes the burden

of proving the specific acts of misconduct that it claims

demonstrate the applicant's lack of fitness to be licensed.");

and Fla. Dep't of HRS v. Career Serv. Comm'n , 289 So. 2d 412,

414 (Fla. 4th DCA 1974) ("[T]he burden of proof is 'on the party

asserting the affirmative of an issue before an administrative

tri bunal.'"). Once Respondent makes such a showing, the burden

shifts to the applicant to demonstrate that he or she has been

reinstated to the Florida Medicaid program and "has been in good

standing . . . for the most recent 5 years." See State v.

Hicks , 421 So. 2d 510, 511 (Fla. 1982) ("We find that as used in

section 810.02(1), the word 'unless' is a qualifier to the

primary sentence of the statute, separating the consent phrase

from the enacting clause and making consent an affirmative

defense."); Baeum el v. State , 7 So. 371, 372 (Fla. 1890) ("[I]f

there is an exception in the enacting clause, the party pleading

must show that his adversary is not within the exception; but,

if there be an exception in a subsequent clause, or a subsequent

statute, that is [a] matter of defen[s]e, and is to be shown by

the other party.") (internal quotations omitted); Royal v.

State , 784 So. 2d 1210, 1211 (Fla. 5th DCA 2001) ("It has long

been the rule that if there is an exception in an enacting

clause, the party pleading must show that his adversary is not

within the exception. If the exception is found in a subsequent

clause or statute, however, it is a matter of defense.")

(citations omitted); and D. R. v. State , 734 So. 2d 455, 459

(Fla. 1st DCA 1999) ("In subsection ( 1) of the burglary statute,

the term 'unless' qualifies the primary sentence and separates

the consent provision from the enacting clause. Consent to

enter is an affirmative defense to burglary.").

18. In the instant case, Respondent (through its

December 16, 2009, Notice) notified Petitioner that, pursuant to

section 456.0635, it intended to deny the renewal of her license

to practice physical therapy. An administrative hearing on this

proposed ag ency action was thereafter held, at Petitioner's

request.

19. At the hearing, Respondent proved that Petitioner had

been "[t]erminated for cause [by AHCA] from the Florida Medicaid

program pursuant to s. 409.913" (as alleged in Respondent's

December 16, 2 009, Notice) on October 6, 2009, 9 a showing which

absolutely negates the possibility that she "has been in good

standing with the Florida Medicaid program for the most recent 5

years" (since this termination occurred less than five years

ago). Accordingly , were Respondent an applicant for renewal of

her license, Respondent would be statutorily barred, pursuant to

the clear directive issued by the Legislature in section

456.0635(2)(b), from renewing her license. Petitioner, however,

has not applied for lic ense renewal, and thus there is no

renewal application for Respondent to deny. Under the statutory

framework, the filing of such an application is a prerequisite

to the exercise of Respondent's authority to grant or deny the

renewal of a license.

20. In view of the foregoing, the undersigned agrees with

Petitioner that Respondent is without authority to, and

therefore cannot and should not, take the final action proposed

in the December 16, 2009, Notice -- denying the renewal of

Petitioner's license. 10

21. Petitioner has requested an award of attorney's fees

and cost s ; however, she has not cited, nor is the undersigned

aware of, any statutory provision under which she would be

entitled to such an award under the particular facts and

circumstances of this c ase.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Respondent issue a final order declining

to deny the renewal of Petitioner's license to practice physical

therapy in the absence of a renewa l application, 11 and finding

that Petitioner has not demonstrated an entitlement to an award

of attorney's fees and costs.

DONE AND ENTERED this 29th day of September, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September, 2011.

ENDNOTES

1 Unless otherwise noted, all references by the undersigned in

this Recommended Order to Florida Statutes are to Florida

Statutes (2010).

2 Respondent had "proposed that [Petitioner's] license be

revoked and that she be required to pay an administrative fine

of $10,000." The administrative law judge acknowledged that

"this [proposed] penalty comes within the applicable range of

penalties an d hence is within the Board's discretion to impose,"

but determined that "it is harsher than necessary to protect the

public."

3 While "[i]t is a fundamental rule of statutory construction

that, if at all possible, a statute should be construed to be

con stitutional," ( Caple v. Tuttle's Design - Build , 753 So. 2d 49,

51 (Fla. 2000)), an agency is "without power to construe an

unambiguous statute in a way which would extend, modify, or

limit [the statute's] express terms or its reasonable and

obvious implicat ions [even if the agency believes that such a

construction is necessary to cure a perceived constitutional

defect]. To do so would be an abrogation of legislative power."

Am. Bankers Life Assurance Co. v. Williams , 212 So. 2d 777, 778

(Fla. 1st DCA 1968) .

4 Another statutory provision which became effective July 1,

2009, section 456.072(1)(kk), allows, but does not require,

Respondent to take disciplinary action (as described in section

456.072(2)) against a licensed physical therapist (outside the

lice nse renewal process) for "being terminated from the state

Medicaid program pursuant to s. 409.913"; under section

456.072(1)(kk), unlike under section 456.0635(2)(b), restoration

of the physical therapist's "eligibility to participate in the

[Florida Medic aid] program" is an absolute defense, regardless

of whether the physical therapist "has been in good standing

with the Florida Medicaid program for the most recent 5 years."

5 Under section 456.0635(2)(b), it is the termination, not the

conduct underlyi ng the termination, that triggers the statute's

mandatory prohibition.

6 Section 456.0635 reads, in its entirety, as follows:

(1) Medicaid fraud in the practice of a

health care profession is prohibited.

(2) Each board within the jurisdiction of

the department, or the department if there

is no board, shall refuse to admit a

candidate to any examination and refuse to

issue or renew a license, certificate, or

registration to any applicant if the

candidate or applicant or any principal,

officer, agen t, managing employee, or

affiliated person of the applicant, has

been:

(a) Convicted of, or entered a plea of

guilty or nolo contendere to, regardless of

adjudication, a felony under chapter 409,

chapter 817, chapter 893, 21 U.S.C. ss. 801 -

970, or 42 U.S .C. ss. 1395 - 1396, unless the

sentence and any subsequent period of

probation for such conviction or pleas ended

more than 15 years prior to the date of the

application;

(b) Terminated for cause from the Florida

Medicaid program pursuant to s. 409.913,

u nless the applicant has been in good

standing with the Florida Medicaid program

for the most recent 5 years;

(c) Terminated for cause, pursuant to the

appeals procedures established by the state

or Federal Government, from any other state

Medicaid progra m or the federal Medicare

program, unless the applicant has been in

good standing with a state Medicaid program

or the federal Medicare program for the most

recent 5 years and the termination occurred

at least 20 years prior to the date of the

application.

(3) Licensed health care practitioners

shall report allegations of Medicaid fraud

to the department, regardless of the

practice setting in which the alleged

Medicaid fraud occurred.

(4) The acceptance by a licensing authority

of a candidate's relinqui shment of a license

which is offered in response to or

anticipation of the filing of administrative

charges alleging Medicaid fraud or similar

charges constitutes the permanent revocation

of the license.

7 Section 409.913(13)(b) provides as follows:

The agency shall immediately terminate

participation of a Medicaid provider in the

Medicaid program and may seek civil remedies

or impose other administrative sanctions

against a Medicaid provider, if the provider

or any principal, officer, director, agent,

m anaging employee, or affiliated person of

the provider, or any partner or shareholder

having an ownership interest in the provider

equal to 5 percent or greater, has been:

Convicted of a criminal offense under

federal law or the law of any state relating

to the practice of the provider's

profession.

8 The "end of the [current] biennium as prescribed by the

Department" is November 30, 2011. See Fla. Admin. Code R. 64B -

9.001(4).

9 That neither AHCA's October 6, 2009, Final Order, nor AHCA's

earlier noti ce of proposed agency action (its July 20, 2009,

letter to Petitioner), contained the actual words "for cause"

does not mean that Petitioner's termination from the Florida

Medicaid program cannot be characterized as a termination "for

cause." Cf. Underwoo d v. Underwood , 64 So. 2d 281, 288 (Fla.

1953)("At the very outset we dispose of the legal effect of the

use of the word 'alimony' in the agreement and decree. It is

not what it is called but what it is that fixes its legal

status. It is the substance an d not the form which is

controlling."); State v. Townsend , 40 So. 3d 103, 105 (Fla. 2d

DCA 2010) ("[I]t is the nature of the search, not the label the

officer places upon it, that controls."); and Boca Raton

Artificial Kidney Ctr., Inc. v. Dep't of HRS , 47 5 So. 2d 260,

261 - 262 (Fla. 1st DCA 1985)("Although the CON in question does

not so state, it represents preliminary agency action. That the

actual certificate fails to state that it is a 'notice of intent

to issue CON' or that it is 'subject to administr ative review'

does not change the character of the certificate as preliminary

agency action.").

10 However, the additional assertions made by Petitioner in her

Petition that Respondent " utilized unadopted rules in the

allegations in the [December 16, 2009] Notice[;] [and] that

[Respondent] has not treated substantially similar licensees in

the same manner" find no support in the record. ("[S]tatements

addressed to a specific party [in a notice of proposed

disciplinary or other agency action, such as t he December 16,

2009, Notice] about specific instances of conduct that the

[agency] believes are violations of [or contrary to] a specified

statutory provision . . . are not rules." Bacchus v. Dep't of

Bus. & Prof'l Reg. , Case No. 06 - 4816RX, 2007 Fla. Div . Adm.

Hear. LEXIS 55 *31 (Fla. DOAH January 30, 2007), aff'd , 982 So.

2d 1180 (Fla. 1st DCA 2008).)

11 In the absence of a renewal application filed prior to

November 30, 2011, Petitioner's license will, pursuant to

Florida Administrative Code Rule 64B17 - 2.005(4), "automatically

revert to delinquent status," and she will no longer have "the

privilege to practice in Florida."

COPIES FURNISHED :

James M. Barclay, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

106 East College Avenue, Suite 600

Tallahassee, Florida 32156

Javier Talamo, Esquire

Kravitz & Talamo, LLP

7600 West 20th Avenue, Suite 213

Hialeah, Florida 33016

Morris Shelkofsky, Esquire

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Allen Hall, Executive Director

Board of Physical Ther apy Practice

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 3255

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.