15-003568 Alicia Chilito, M.D. vs. Department Of Health Status: Closed Recommended Order on Monday, February 29, 2016.

Summary: Petitioner proved, by a preponderance of the evidence, that she is entitled to renewal of her physician license under the default licensure provision in section 120.60(1).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALICIA CHILITO, M.D.,

Petitioner,

vs. Case No. 15 - 3568

DEPARTMENT OF HEALTH,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2015), before Cathy M.

Sellers, an Administrative Law Judge ("ALJ") of the Division of

Administrative Hearings ("DOAH"), on December 16, 2015, in

Tallahassee, Florida.

APPEARANCES

For Petitione r: Bruce Douglas Lamb, Esquire

Gunster, Yoakley, and Stewart, P.A.

401 East Jackson Street, Suite 2500

Tampa, Florida 33602

For Respondent: Leslie Jennings McIlroy, Esquire

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

On April 17, 2015, Respondent, Department of Health, issued

a Notice of Agency Action Denial of License Renewal ( " First

Denial Notice " ), notifying Petiti oner, Alicia Chilito, M.D.,

that it had denied her application for renewal of her physician

license. Thereafter, on May 19, 2015, Respondent issued an

Amended Notice of Agency Action Denial of License Renewal

("Second Denial Notice"), reiterating, and sta ting alternative

grounds for, its denial of Petitioner's physician license.

Petitioner timely challenged Respondent's decision and the

matter was referred to DOAH to conduct a hearing pursuant to

sections 120.569 and 120.57(1). The final hearing initia lly was

scheduled for August 14, 2015, but pursuant to motions, was set

for December 16, 2015.

On August 14, 2015, Respondent filed a Motion to Relinquish

Jurisdiction, contending that there were no disputed issues of

material fact to be resolved in a h earing conducted under

section 120.57(1). This motion was denied by orde r issued on

September 1, 2015, on the basis that disputed issues of material

fact existed regarding whether Petitioner was entitled to

renewal of her license by default pursuant to se ction 120.60(1).

On December 11, 2015, Respondent filed Department of

Health's Motion in Limine, seeking to limit the scope of the

final hearing. A telephonic motion hearing was conducted on

December 15, 2015, the day before the final hearing. The

under sig ned granted the motion and exclude d evidence that may be

offered at the final hearing to challenge the underlying factual

basis on which the Termination Final Order was entered.

The final hearing was held on December 16, 2015. Joint

Exhibits 1 throu gh 4 were admitted into evidence. Petitioner

did not present any witnesses. Petitioner's Exhibits 1 through

10 were tendered but not admitted, and were proffered for

inclusion in the record. Respondent presented the testimony of

Heidi Nitty. Respondent 's Exhibit 1 was admitted into evidence

without objection and Respondent's Exhibits 5 and 6 were

admitted over objection. Official recognition was taken of the

Final Order issued by the Agency for Health Care Administration

("AHCA") in the case of Agency for Health Care Administration v.

Alicia Chilito, M.D. , Case No. 12 - 571PH (AHCA November 4, 2013)

and the Order Granting Motion to Relinquish Jurisdiction in the

case of Agency for Health Care Administration v. Alicia Chilito,

M.D. , Case No. 12 - 0859MPI (Fl a. DOAH July 12, 2012).

The one - volume Transcript was filed on January 8, 2016, and

the parties were given until January 19, 2016, to file proposed

recommended orders. The parties timely filed proposed

recommended orders, which were duly considered in pr eparing this

Recommended Order.

FINDINGS OF FACT

1. Petitioner, Alicia Chilito, M.D., is a physician

licensed to practice medicine in Florida pursuant to License

No. ME 74131.

2. Respondent, Department of Health, is the state agency

charged with r egulating the practice of medicine, including

licensing physicians pursuant to chapters 456 and 458, Florida

Statutes (2015).

3. Petitioner timely filed a Renewal Notice, which

constituted her application to renew her physician license. 1/

Respondent r eceived Petitioner's Application on January 5, 2015.

4. Respondent did not, within 30 days of receipt of her

application, request Petitioner to provide any additional

information that it was permitted by law to require, nor did it

notify her of any appa rent errors or omissions in her

application.

5. Accordingly, Petitioner's application was complete on

January 5, 2015, by operation of section 120.60(1), for purposes

of commencing the 90 - day period for Respondent to approve or

deny her application. 2/

6. The 90 - day period from Respondent's receipt of

Petitioner's complete application expired on or about April 6,

2015. 3/

7. Heidi Nitty, a government analyst I with Respondent,

was involved in the review of Petitioner's application. Her

specific role i n the application review process was "reviewing

court documents and other orders for possible denial of renewal

and also recording [Respondent's] final orders in the national

practitioner database."

8. In the course of Nitty's review, she determined that

Petitioner previously had been terminated from the Florida

Medicaid program. Accordingly, she entered a "do - not - renew

modifier" to Petitioner's license application file in

Respondent's computer system.

9. On January 20, 2015, Petitioner called Re spondent to

inquire about the status of her application. She was referred

to Ms. Nitty, who was not available to speak to her at that

time. Petitioner and Nitty exchanged calls over the course of

that day, but did not speak to each other until January 21 ,

2015, when Petitioner again called, and that time, reached,

Nitty. At that point, Nitty verbally informed Petitioner that

her application "was being denied" due to having previously been

terminated from the Florida Medicaid program.

10. On April 17, 2015 ÏÏ some 102 days after Petitioner

filed her complete application ÏÏ Respondent issued its First

Denial Notice, notifying Petitioner that it was denying her

application. The First Denial Notice stated that Petitioner's

license renewal was being denied pur suant to section

456.0635(2)(e) because she was listed on the United States

Department of Health and Human Services Office of Inspector

General's List of Excluded Individuals and Entities. 4/

11. On May 19, 2015 ÏÏ some 134 days after Petitioner filed

her c omplete application ÏÏ Respondent issued its Second Denial

Notice, again stating its intent to deny Petitioner's

application. However, the Second Denial Notice stated that

Petitioner's license renewal was being denied pursuant to

section 456.0635(3)(c) beca use she had been terminated for cause

from the Florida Medicaid Program pursuant to section 409.913,

Florida Statutes, as reflected in the Termination Final Order

issued b y AHCA on March 6, 2014.

12. The stated basis for AHCA's March 6, 2014, Termination

Final Order was that Petitioner previously had been terminated

from the federal Medicare program and the Florida Medicaid

program. The Termination Final Order is a final order issued by

AHCA, who is not a party to this proceeding.

13. Petitioner disputes the underlying factual basis for

AHCA ' s Termination Final Order and claims that , in any event,

she did not receive the notice , issued on January 17, 2014, that

AHCA was proposing to terminate her from the Florida Medicaid

program ; thus, s he did not challenge th e proposed termination .

Although Petitioner has raised these challenges to the

Termination Final Order in her Petition for Hearing Involving

Disputed Issues of Material Fact filed in thi s proceeding , the

undersigned is not authorized to " reopen " AHCA ' s Termination

Final Order and revisit its factual and legal underpinnings 5/ so

declined to take evidence on those issues at the final hearing

in this proceeding . 6/

14. Petitioner asserts t hat because Respondent's First

Denial Notice and Second Denial Notice both were issued more

than 90 days after Respondent received her complete application,

she is entitled to licensure by default under section 120.60(1).

15. Respondent counters that t he 90 - day period for

approving or denying Petitioner's license commenced on

February 4, 2015, so its First Denial Notice was timely issued.

Respondent further asserts that, in any event, Nitty's statement

to Petitioner during their January 21, 2015, tele phone

discussion satisfied the "90 - day approval or denial requirement"

in section 120.60(1), so that Petitioner is not entitled to

issuance of a renewed license by default.

16. It is undisputed that AHCA did not issue the written

notices of its decision to deny Petitioner's license renewal

until well after April 6, 2015. Therefore, unless Nitty's

statement to Petitioner on their January 21, 2015, telephone

call constituted Respondent's denial of Petitioner's application

within 90 days after its receipt , Petitioner is entitled to

issuance of her license by default, pursuant to section

120.60(1).

17. The evidence establishes that when Nitty told

Petitioner on January 21, 2015 ÏÏ notably, in response to

communication that Petitioner initiated ÏÏ that her li cense " was

being denied," Respondent had not yet made its final decision to

deny her application, so had not yet "approved or denied"

Petitioner's license.

18. Nitty's role in the application review process was

limited to determining whether Petitioner p reviously had been

terminated from the Florida Medicaid program, and, if so, to

draft a denial letter for review and approval by her superiors.

That is precisely what she did. Based on her confirmation that

Petitioner had previously been terminated from the Florida

Medicaid program, Nitty drafted a denial letter, which was then

sent up Respondent's "chain of command" for approval or

rejection, and, ultimately, for signature by Respondent's Deputy

Secretary for Administration. The "chain of command" inclu ded

her immediate supervisor, the bureau chief, the division

director, and legal counsel ÏÏ any and all of whom had the

authority to reject her recommendation. To that point, Nitty

acknowledged that the denial letter she drafted had "some

rewrite issues" an d that her supervisor, had, in fact, rewritten

the letter. Nitty was not the person authorized by Respondent

to make its final, binding decision to approve or deny

Petitioner's application, and she did not know who actually made

the ultimate decision to d eny Petitioner's license renewal.

Thus, at bottom, when Nitty told Petitioner that her license

"was being denied," she was only conveying her preliminary

assessment, as application review staff, that Petitioner's

application was being denied. Nitty's com munication of her

preliminary assessment could not, and did not, constitute

Respondent's "approval or denial" of Petitioner's application. 7/

19. Thus, Respondent did not approve or deny Petitioner's

application within the 90 - day approval/denial period.

Accordingly, pursuant to section 120.60(1), Petitioner's

application is "considered approved."

20. There is no evidence showing that, as of the date of

the final hearing, Petitioner had notified Respondent's agency

clerk of her intent to rely on the def ault license provision in

section 120.60(1).

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

22. In this proceeding, Respondent proposes to deny the

r enewal of Petitioner's physician license on the basis of

section 456.0635(3)(c), which states in pertinent part:

(3) The department shall refuse to renew a

license, certificate, or registration of any

applicant if the applicant or any principal,

officer, agent, managing employee, or

affiliated person of the applicant:

* * *

( c) Has been terminated for cause from the

Florida Medicaid program pursuant to s.

409.913, unless the applicant has been in

good standing with the Florida Medicaid

program for the most recent 5 years.

23. Respondent's action denying the renewal of

Petitioner' s license under section 456.0635 (3)(c) is tantamount

to revoking her license. See Wilson v. Pest Control Comm ' n , 199

So. 2d 777, 781 (Fla. 4th 1967). Accordingly, Respondent bears

the ultimate burden of persuasion on this issue by clear and

convincing evidence. See Coke v. Dep ' t of Child. & Fam. Servs. ,

704 So. 2d 726 (Fla. 5th DCA 1998); Dubin v. Dep ' t of Bus. Reg. ,

262 So. 2d 273, 274 (Fla. 1st DCA 1972); Dep ' t o f Banking &

Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670

So. 2d 932, 933 - 34 (Fla. 1996). This standard of proof has been

described as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the fa cts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the tr ier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(citing Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983 )).

24. He re, it is undisputed that on March 6, 2014, AHCA

issued a Termination Final Order, terminating Petitioner's

participation in the Florida Medicaid program. Thus,

Respondent has shown, by clear and convincing evidence, that

section 456.0635(3)(c) constitu tes a legal basis for denying the

renewal of Petitioner's licensel. 8/

25. However, notwithstanding that section 456.0635(3)(c)

directs Respondent to deny renewal of a license when the

provider has been terminated from the Florida Medicaid program,

Resp ondent nonetheless remains bound by, and must comply with,

chapter 120 ÏÏ including the provision in section 120.60(1) that

entitles Petitioner to issuance of a license by default if

Respondent fails to approve or deny her application within 90

days of its r eceipt of her complete application. See Dep ' t of

Child. & Fam. Servs. v. I.B. , 891 So. 2d 1168, 1173 (Fla. 1st

DCA 2005)(notwithstanding an agency's statutory responsibility

and mission, the agency must follow the Administrative Procedure

Act ("APA") absent a specific statutory exemption therefrom).

See also Gopman v. Dep ' t of Edu c. , 908 So. 2d 1118, 1122 (Fla.

1st DCA 2005)(absent an articulated statutory exemption, an

agency lacks authority to effectively declare itself exempt from

the APA and its provisions). 9/

26. As noted above, Petitioner asserts that Respondent

failed to approve or deny her license within 90 days of its

receipt of her completed application. Petitioner bears the

ultimate burden of persuasion on this issue by the preponderance

of the evidence. See Balino v. Dep ' t of Health & Rehab. Servs. ,

348 So. 2d 349, 350 (Fla. 1st DCA 1977); South Fla. Water Mgmt.

Dist. v . RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014)

(preponderance means the "greater weight of the evidence").

27. Section 120.60(1) states :

( 1) Upon receipt of a license application,

an agency shall examine the application and,

within 30 days after such receipt, notify

the applicant of any apparent errors or

omissions and request any additional

information the agency is permitted by law

to require. An agency may not deny a

license for failure to correct an error or

omission or to supply additional information

unless the agency timely notified the

applicant within this 30 - day period. The

agency may establish by rule the time period

for submitting any additional information

requested by the agen cy. For good cause

shown, the agency shall grant a request for

an extension of time for submitt ing the

additional information. If the applicant

believes the agency ' s request for additional

information is not authorized by law or

rule, the agency, at the applicant ' s

request, shall proceed to process the

application. An application is complete

upon receipt of all requested information

and correction of any error or omission for

which the applicant was timely notified or

when the time for such notification has

expired. An application for a license must

be approved or denied within 90 days after

receipt of a completed application unless a

shorter period of time for agency action is

provided by law. The 90 - day time period is

tolled by the initiation of a proceeding

under ss. 120.569 and 120.57 . Any

application for a license whi ch is not

approved or denied within the 90 - day or

shorter time period , within 15 days after

conclusion of a public hearing held on the

application, or within 45 days after a

recommended order is submitted to the agency

and the parties, whichever action and

timeframe is latest and applicable, is

considered approved unless the recommended

order recommends that the agency deny the

license . Subject to the satisfactory

completion of an examination if required as

a prerequisite to licensure, any license

that is considered approved shall be issued

and may include such reasonable conditions

as are authorized by law . Any applicant for

licensure seeking to claim licensure by

default under this subsection shall notify

the agency clerk of the licensing agency, in

writ ing, of the intent to rely upon the

default license provision of this

subsection, and may not take any action

based upon the default license until after

receipt of such notice by the agency clerk.

§ 120.60(1), Fla. Stat. (emphasis added).

28. As noted above, Respondent did not, within 30 days of

its receipt of Petitioner's application on January 5, 2015 ,

notify her of any apparent errors or omissions or request any

additional information that it was permitted by law to require.

Thus, Petitioner's appli cation was complete, pursuant to

section 120.60(1), for purposes of commencing the 90 - day period

for approval or denial, on January 5, 2015. Tuten v. State , 819

So. 2d 187, 189 (Fla. 4th DCA 2002)(agency receipt of a complete

application triggers the 90 - day approval/denial period);

MVP Health, Inc. v. Agency for Health Care Admin. , Case

No. 2009012001 (Fla. AHCA May 27, 2010)(recognizing that AHCA

committed error in not determining an application complete for

p urposes of commencing the 90 - day approval/denial period on the

day on which the initial application was received by the

agency). 10/ See Sumner v. Board of Psychological Examiners ,

555 So. 2d 919, 920 (Fla. 1st DCA 1990)(90 - day approval/denial

period commenced on the day the application was received by the

agency). Therefore, as addressed above, the 90 - day period for

approving or deny Petitioner's application expired on or about

April 6, 2015.

29. As discussed above, the evidence establishes that wh en

Nitty told Petitioner, on January 21, 2015, that her license

renewal was being denied, Respondent had not yet made its final

decision to approve or deny her application. 11/ It is clear that

Nitty was not the final decision - maker and that her preliminar y

assessment regarding Respondent's approval or denial of

Petitioner's license was subject to review by at least four

levels of superiors ÏÏ any and all of whom could reject or change

her recommendation.

30. Relying on Sumner and Department of Transportati on v.

Calusa Trace Development Corp. , 571 So. 2d 543 (Fla. 4th DCA

1990), Respondent contends that Nitty's verbal statement

to Petitioner in the January 21, 2015, telephone call met

the "approval/denial within 90 days" requirement in

section 120.60(1) b ecause providing verbal notice of the

agency's decision within the 90 - day period is sufficient to

avoid the default provision in that statute. That reliance is

misplaced.

31. In Sumner , the Board of Psychological Examiners

("Board"), at a public meetin g held within 90 days of its

receipt of Sumner's complete application for certification to

take the psychologist licensure examination, voted to deny her

application. Thereafter, but before expiration of the 90 - day

period, Sumner called to inquire about t he status of her

application; at that time, she was verbally informed that the

Board had denied her application at its meeting. However, the

Board's written notice of its previously - made denial decision

was not issued within the 90 - day period from receipt of her

application. On appeal, the court rejected Sumner's argument

that she was entitled to issuance of default license under

section 120.60(1), holding that the agency was not required to

provide written notice, within the 90 - day period, of its

decisio n to deny her license. Key to the court's decision was

that the Board had denied the application within the 90 - day

period and that she had been notified of that action, albeit

verbally.

32. In Calusa Trace , the District Secretary for District

Seven of t he Department of Transportation ("DOT"), verbally

informed Calusa Trace, in a face - to - face meeting held within

90 days of the receipt of its complete application, that its

application for a state highway connection permit was denied.

However, DOT did not issue its written denial until after the

90 - day period from receipt of Calusa's application had expired.

On appeal, the court affirmed that providing verbal notice

within the 90 - day period of the agency's denial decision is

sufficient to meet the require ment in section 120.60(1) that the

application be "approved or denied within 90 days after receipt"

for purposes of avoiding approval by default. Again, key to the

court's holding was that the agency had, in fact, made its final

decision to deny, and, had denied the application within the 90 -

day period.

33. These cases are factually distinguishable from this

case. In both Sumner and Calusa Trace , the entity or person who

had final decision - making authority over approval or denial of

the application made the final decision to deny ÏÏ i.e., denied ÏÏ

the permit within the 90 - day period. By contrast, here, Nitty

was merely part of Respondent's license review staff. She was

not the final decision - maker who appro ved or denied Petitioner's

license. Thus, when Nitty told Petitioner during their January

21, 2015, telephone call, that her license "was being denied,"

it is indisputable that Respondent's final decision - maker , who

had the authority to approve or deny Pe titioner's application,

had not yet made the final decision to deny her license.

Indeed, Nitty acknowledged that the denial letter she drafted

was subject to four levels of review by superiors, that her

supervisor had rewritten the letter she drafted, and that she

did not know who made the ultimate decision to deny Petitioner's

application. Furthermore, Respondent presented no evidence

showing that the person who was authorized to make the final

decision to den y Petitioner's application did so within the

90 - day period.

34. Under these circumstances, it cannot be concluded that

Nitty's verbal statement to Petitioner during their January 21,

2015, telephone call constituted Respondent's "approv[al] or

den[ial] of her application within 90 days after rece ipt" of her

completed application. To that point, if an agency were able to

evade the 90 - day approval/denial requirement simply because an

application reviewer who is not authorized to make the final

decision spoke to an applicant about that reviewer's pr eliminary

assessment of what the agency's decision may be, agencies

effectively would have carte blanche to disregard the

Legislature's unequivocal direction in section 120.60(1) that a

license application be " approved or denied within 90 days after

receip t of a completed application."

35. Respondent contends that even if it did not meet the

90 - day approval/denial period , it still is not required to issue

a default license to Petitioner because, as Respondent put it:

Moreover [sic] section 456.0635, Florida

Statutes [sic] controls over section 120.60,

Florida Statutes [sic] because section

456.0635, Florida Statutes [sic] is the more

recently enacted statute and the more

specific statute. See Florida Virtual Sch.

V. K12, Inc. , 148 So. 3d 97, 101 (Fl a.

2014).

The undersigned disagrees that the "specific statute controls

over general statute" statutory construction canon applies in

this case.

36. First ÏÏ and fundamentally ÏÏ this canon applies only when

statutes, on their face, conflict with each other. State Farm

Mut. Auto Ins. Co. v. Nichols , 932 So. 2d 1067, 1073 (Fla.

2006). That is not the case here. Respondent correctly asserts

that unde r specified circumstances, including those present in

this case, section 456.0635 requires Respondent to deny renewal

of a physician license. However, as discussed above,

Respondent, as a state agency, must nonetheless comply with the

APA ÏÏ including issui ng a default license under section 120.60 ÏÏ

unless the Legislature has specifically exempted it from such

compliance. See Gopman , 908 So. 2d at 1122. See also Dep ' t of

Child. & Fam. Servs. v. I.B. , 891 So. 2d at 1173 (even though

agency has statutorily - co nferred responsibilities, absent an

articulated statutory exemption, "the [APA] applies [to the

agency] no less than to every other 'state department, and each

departmental unit.'"). Here, Respondent has not identified any

articulated statutory exemption that would relieve it from

complying with section 120.60(1). Therefore, under the

circumstances in this case, it is required by law to issue a

default license to Petitioner, even though it is placed in the

position of issuing a license that it otherwise w ould have

denied had it met the approval/denial timeframe in section

120.60(1) . 12/ Accordingly, Respondent's contention that

section 456.0635 controls over section 120.60(1) is rejected.

37. Further, the logical import of Respondent's position

is that any agency that engages in licensing could declare

itself exempt from section 120.60(1) if it determined that a

"conflict" existed between that provision and its substantive

statute. If that were the case, agencies would have the

discretion to effectivel y write the default license provision

out of section 120.60(1), in derogation of the established

statutory construction principle that the Legislature does not

intend to enact useless provisions, so interpretations that

would render a statute meaningless m ust be avoided. Dennis v.

State , 51 So. 3d 456 (Fla. 2010). See Bennett v. St. Vincent ' s

Med. Ctr., Inc. , 71 So. 3d 828 (Fla. 2011)(statutes must be

interpreted to give full effect and meaning to all words and

provisions where possible).

38. Responde nt also contends that Petitioner is not

entitled to a default license because she did not notify

Respondent's clerk in writing of her intent to rely on the

default provision of section 120.60(1). Although there is no

evidence showing that, as of the date of the final hearing ,

Petitioner had so notified the Respondent's clerk, the statute

does not state any time limit or deadline for doing so. Thus,

if Petitioner ultimately were to prevail in this proceeding, she

could thereafter notify Respondent's clerk, in accordance with

the requirements of section 120.60(1). Because Petitioner has

not yet invoked her right to issuance of a default license does

not mean that she is not entitled to such license; it simply

means that she must comply with the requirements in

section 120.60(1) to obtain that license.

39. Based on the foregoing, the undersigned concludes that

even though Respondent showed, by clear and convincing evidence,

that section 456.0635(3)(c) establishes a legal basis for

Respondent's denial of Pe titioner's renewal license, Petitioner

proved, by a preponderance of the evidence, that Respondent

failed to approve or deny her license within 90 days of receipt

of her complete application. Therefore, by operation of

section 120.60(1), Petitioner's ren ewal license application is

considered approved. Upon Petitioner's notification of

Respondent's agency clerk in accordance with the specific

requirements of section 120.60(1), of her intent to rely on the

default provision of that statute, Respondent is r equired to

issue her renewal license. § 120.60(1), Fla. Stat. ("Any

application for a license which is not approved or denie d within

the 90 - day . . . period . . . is considered approved . . . .

[A]ny license that is considered approved shall be issued and

may include reasonable conditions as authorized by law.")

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that Respondent enter a final order

that: (1) acknowledges that Petitioner's application for

rene wal of License No. ME 7 4131 is considered approved pursuant

to section 120.60(1), Florida Statutes, and (2) directs

Respondent's agency clerk, upon Petitioner's notification to

said agency clerk that complies with section 120.60(1), to issue

Petitioner's l icense, which may include such reasonable

conditions as Respondent is authorized by law to require.

DONE AND ENTERED this 29th day of February, 2016, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of February, 20 16.

ENDNOTES

1/ Petitioner's physician's license expired on January 31, 2015.

The application form, DH - MQA - 1229, stated, in pertinent part:

"[t]he fee of $279.00 and the renewal notice must be postmarked

on or before January 31, 2015."

2/ See note 10, infra.

3/ April 5, 2015, a Sunday, was the ninetieth day from

January 5, 2015. Florida Administrative Code Rule 28 - 106.103

provides in pertinent part: "[t]he last of the period shall be

included unless it is a Saturday, Sunday, or legal holiday, in

which even the period shall run until the end of the next day

which is not a Saturday, Sunday, or legal holiday."

4/ This citation is incorrect. Section 456.0635(2)(e) sets

forth the bases for refusing to issue an initial license.

Section 4 56.0635(3) sets forth the grounds on which Respondent

can refuse to renew a license. Here, Respondent proposed to

deny Petitioner's renewal license. Accordingly, it appears that

the citation should have been to subsubsection (3)(c) of section

456.0635. Respondent's witness also acknowledged that the basis

for denial stated in the First Denial Notice was not factually

accurate.

5/ An agency's power to reopen or reconsider final orders must

either be given by statute or inherent by reason of the nature

of the agency and the functions it is empowered to perform.

Peoples Gas System, Inc. v. Mason , 187 So. 2d 335, 338 (Fla.

1966). In Florida, agencies have been determined to have

inherent power to reopen and reconsider final orders which are

still under the ir control . Id. Here, the undersigned has

neither statutory nor inherent authority to reopen AHCA's

March 6, 2014, Termination Final Order.

6/ In support of Respondent's position that Petitioner was on

notice that it had denied her license, Responden t provided

letters from Petitioner's former counsel, written in

February 2015, stating that it had come to their attention that

Respondent had "suggested" that Petitioner's license would not

be renewed. These letters do not show that Petitioner was on

no tice, before the 90 - day approval period expired, that

Respondent had denied her license. If anything, they support

the inference that Nitty's January 21, 2015 statement to

Petitioner was her preliminary assessment, and that Petitioner

perceived it as such .

7/ Petitioner proffered evidence on these issues to preserve

them for appeal.

8/ This conclusion assumes that Respondent does not, in any

manner, determine the accuracy (or inaccuracy) of the underlying

factual basis for AHCA's March 6, 2014, Term ination Final Order,

including any events leading to its entry. As noted above, the

undersigned lacks the statutory authority to "reopen" AHCA's

Termination Final Order and revisit its underlying factual and

legal grounds.

9/ See paragraph 36, infra.

10/ Respondent cites the Recommended Order in Adoption Advisory

Associates, Inc. v. Department of Children and Family Services ,

Case No. 99 - 3438, ¶¶ 208 - 209 (DOAH June 13, 2000) for the

proposition that Petitioner's application did not become

complete unt il after the 30 - day period for notifying Petitioner

of any errors or omissions had expired. More recent appellate

case law makes abundantly clear that this is not an accurate

reading of section 120.60(1). In Tuten , under similar

circumstances in which th e agency did not request additional

information within 30 days of receipt of the application, the

court held that the application became complete for purposes of

triggering the 90 - day "approval/denial" period on the day on

which it was received by the agen cy. Id. (" [b]oth sections

373.4141(1) and 120.60(1) , Florida Statutes, provide that the

'receipt' of an application is the triggering date")(emphasis

added). MVP Health , a recent administrative case that arose

under substantively comparable circumstances , also makes clear

that the 90 - day "approval/denial" period commences upon the

agency's receipt of information that renders the application

substantively sufficient to enable the agency's review on the

merits. In MVP Health , the applicant submitted an app lication

for a home health agency license. AHCA timely reviewed the

application and requested additional information (regarding

ownership issues). The applicant provided the requested

information within the timeframe specified by the agency, and

the agen cy did not dispute that it had received that

information. However, the agency questioned the accuracy (not

the substantive sufficiency) of the information the applicant

had provided and thereafter issued a "Notice to Deem Application

Complete and Withdraw n from Further Review," effectively denying

the license. The applicant challenged the denial, asserting

that it was entitled to a default license pursuant to section

120.60(1) because its application was complete on the day AHCA

received the additional in formation. In determining that the

applicant was entitled to a default license under section

120.60(1), the ALJ eloquently explained:

Nothing in Section 120.60(1), Florida

Statutes, suggests, however, that the 90 - day

or shorter period does not commence u ntil

the agency declares the application

complete. The statute says that an

'application shall be considered complete

upon receipt of all requested information

and correction of any error or omission for

which the applicant was timely notified or

when the time for such notification has

expired.' § 120.60(1), Fla. Stat. (emphasis

added). The date upon which an agency was

in receipt of all legally required elements

of an application is an historical fact. If

the agency never received all of the

required e lements, that too is a matter of

historical fact. The question of whether a

particular 'application shall be considered

complete,' therefore, is ultimately a

factual one, as is the question of when the

application was completed, in cases where it

is consi dered complete. If, for whatever

reason, the agency misapprehended the

historical events as they unfolded, its

subjective understanding cannot alter or

override the objective reality. The facts,

after all, are the facts. Here, MVP's

application was comp lete as of July 24,

2009, regardless of whether the Agency knew

that fact. Consequently, the 60 - day period

began on that date, regardless of whether

the Agency noticed.

Id. at ¶ 35 (emphasis in original).

Although AHCA, in its final order issued in MVP , purported to

reject this conclusion of law, its substituted conclusion of law

acknowledges that:

[t]he evidence presented in this matter

demonstrates that the Agency erroneously

found the Petitioner's initial licensure to

be incomplete. In actuality, the

Petitioner's application was complete , and

Petitioner met all requirements for

licensure at the time the application was

submitted .

MVP Health, Inc. v. Agency for Health Care Admin. , Case

No. 2009012001 (Fla. AHCA May 27, 2010) at p.5 (emphasis adde d).

These cases make abundantly clear that an application is

complete under section 120.60(1) upon the agency's receipt of

the application itself, when ÏÏ as here ÏÏ the agency does not

request additional information or notify the applicant of error

or om ission within 30 days of receipt, or, in the case of an

application in which the agency does timely request additional

information or notify the applicant of error or omission, the

agency's receipt of the information that corrects these

deficiencies. Resp ondent's position is directly contrary to

this established case law and therefore is rejected.

11/ The Legislature's purpose in enacting section 120.60(1) is

to require agencies to timely review license applications and to

timely make a final decision wh ether to approve or deny an

application, so that an applicant, who has important legal

rights at issue, is not placed in the position of having to wait

an indefinite amount of time for an agency to "get around to"

making a final decision.

12/ Tuten v . State involved essentially identical circumstances.

In Tuten , the Department of Environmental Protection ("DEP")

issued, after the 90 - day approval/denial period had expired, its

final agency decision that the project for which the permit was

sought coul d not be approved under the applicable statutory and

rule standards. On appeal, the court ordered DEP to issue a

default permit pursuant to section 120.60(1), even though the

project did not meet the applicable standards. Id . at 189.

Tuten counsels that an agency that fails to approve or deny a

complete application within 90 days of receipt must issue a

default permit ÏÏ even when the application does not meet the

applicable licensing standards. That said, it is noted that

section 120.60(1) authorizes the agency to impose reasonable

conditions on the default license. See paragraph 39, infra.

COPIES FURNISHED:

Bruce Douglas Lamb, Esquire

Gunster, Yoakley , and Stewart, P.A.

401 East Jackson Street, Suite 2500

Tampa, Florida 33602

(eServed)

Jay Patrick Reynolds, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 1703

(eServed)

Leslie Jennings McIlroy, Esquire

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703

(eServed)

Shannon Revels, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Flori da 32399 - 1701

(eServed)

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServed)

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.