18-005986F Agency For Health Care Administration vs. Covenant Hospice, Inc. Status: Closed Recommended Order on Wednesday, June 12, 2019.

Summary: AHCA is not entitled to attorney's fees under section 409.913(23), Florida Statutes, as attorney's fees are not considered legal costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 18 - 5986F

COVENANT HOSPICE, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case is before Administrativ e Law Judge Yolonda Y.

Green of the Division of Administrative Hearings (ÐDivisionÑ)

pursuant to the partiesÓ Joint Motion to Cancel Hearing and Set

Date to File Briefs . T he case was submitted for decision based

upon a stipulated record.

APPEARANCES

For Petitioner: M arion Drew Parker, Esquire

Radey Law Firm

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301 - 1722

For Respondent: Bryan K. Nowicki, Esquire

Joshua D. Tagga tz, Esquire

Reinhart Boerner Van Deuren, S.C.

Suite 600

22 East Mifflin Street

Madison, Wisconsin 5 3 701 - 2018

STATEMENT OF THE ISSUE

The issue to be determined in this matter is whether the

Agency for Health Care Administra t ion (Ð AHCA Ñ) is entitled to

recover its attorneyÓs fees and costs , pursuant to section

409.913(23), Florida Statutes , incurred prosecuting a matter

pursuant to section 409.913.

PRELIMINARY STATEMENT

On October 17, 201 8, AHCA issued a Final Order in Agency

for Health Care Administration v. Covenant Hospice, Inc. ,

Case No. 17 - 4641 MPI (Fla. DOAH Aug. 15, 2018), rejected in part ,

Case No. 18 - 0701 (Fla. AHCA Oct. 17, 2018) (ÐOverpayment CaseÑ) ,

finding AHCA is entitled to recover $637,973.10 in Medicaid

overpayments and to impose a fine of $127,594.62. The Final

Order concluded, Ð[a] dditionally, since the Agency has prevailed

in this matter, it is entitled to recover its investigative,

legal, and expert witness cost s it incurred in this matter.

§ 409.91 3(23), F la. S tat .Ñ The Final Order provided that if the

parties are unable to reach an agreement as to costs, either

party may file a request with the Division within 30 days of the

date of the rendition of the Final Order.

On November 15, 2018, AHCA time ly filed its Petition for

Administrative Hearing for Recovery of Fees and Costs

(ÐPetitionÑ) . The Petition was assigned to the undersigned for

disposition. On November 26, 2018, the undersigned conducted a

telephonic hearing with the parties, at which time they

requested that the case be placed in abeyance to allow

additional time to resolve the matter without a hearing. On

December 28, 2018 , the parties submitted their Joint Status

R eport requesting additional time, until February 7, 2019, to

discuss settlement negotiations. On February 7 , 2019, AHCA

filed its A mended Petition for Recovery of PetitionerÓs F ees and

Costs , w hich is the P etition at issue in this matter. Covenant

Hospice, Inc. (ÐCovenantÑ), disputes that AHCA is entitled to

legal fees and costs. On February 8, 2019, the parties filed

their Joint Status R eport providing dates to schedule the final

hearing. The final hearing in this matter was then scheduled

for April 3, 2019.

On March 15, 2019, the undersigned held a c ase management

conference , pursuant to the partiesÓ request . The parties

advised the undersigned of their desire to forego an evidentiary

hearing and to limit the instant case to the legal question of

whether AHCA is entitled to attorneyÓs fees and costs under

section 409.913(23) . The parties were instructed to file their

Joint St ipulated Preliminary Facts (ÐJoint StipulationÑ) and

b riefs , which contained facts that have been incorporated into

the Findings fo Fact below, to the extent relevant.

On April 5, 2019, Respondent filed its Motion to Strike two

exhibits attached to AHCAÓs Memorandum of Law in Support of

PetitionerÓs Amended Petition for Legal Fees . The undersigned

denied the Motion to Strike and took official recognition of the

two exhibits. T hus, PetitionerÓs Exhbits 1 and 2 have been

admitted. RespondentÓs Exhibit 1 has been admitted. All

exhibits and the Joint Stipulation were co nsidered in

preparation of this Recommended Order. 1 /

FINDING S OF FACT

1 . AHCA is the state agency responsible for administering

the Florida Medicaid Program. Medicaid is a joint federal/state

program to provide health care and related services to qualified

individuals, including hospice services.

2 . Covenant is a provider of hospice and end - of - life

services and at all times relevant to this matter, the program

was an authorized provider of Medicaid services pursuant to a

valid Medicaid provider agreement with AHCA.

3 . AHCA is authorized to recover Medicaid overpa yments, as

deemed appropriate, pursuant to section 409.913 .

4. The U.S. Department of Health & Human Services, Centers

for Medicare and Medicaid Services (ÐCMSÑ) , contracte d with

Health Integrity , a private vendor, to perform an aud it of

Covenant. Health Integrity retained a company called Advanced

Medical Reviews (ÐAMRÑ) to provide peer physician reviews of

claims to determine whether an overpayment occurred.

5. Based on the audit findings in the Overpayment C ase,

AHCA prosecuted claims against Covenant for Medicaid

overpayment.

6 . On August 9, 2016, AHCA provided a Final Audit Report

(ÐFARÑ) to Covenant seeking $715,518.14 in overpayments,

$142,903.63 in fines, and $131.38 in costs.

7 . On August 29, 2016, Covenant timely filed a Petition

for Formal Administrative Hearing.

8 . The undersigned conducted a final hearing on March 19

through 2 3, 2018, on CovenantÓs Petition filed in the

Overpayment Case. At the time of the fina l hearing, AH CA sought

a modified overpayment of $677,023.44, and a fine of

$135,404.68.

9 . On August 15, 2018, the undersigned issued a

Recommended Order in the Overpayment Case finding AHCA is

entitled to collect an overpayment of $637,632.15 , and a fine of

$127,526.43. The Recommended Order noted that AHCA reserved its

right to amend it s cost worksheet in this matter and , pursuant

to section 409.913(23) , file a request with the undersigned to

recover all investigative and legal costs, if it p revailed .

10 . On October 17, 2018, AHCA issued a Final Order in the

Overpayment Case finding AHCA is entitled to recover $637,973.10

in overpayments and to impose a fine of $127,594.6 2. The Final

Order concluded, Ð[a] dditionally, since the Agency has pre vailed

in this matter, it is entitled to recover its investigative,

legal, and expert witness costs it incurred in this matter.

§ 409.913(23), F la . S tat .Ñ Further, it provided that if the

parties are unable to reach an agreement as to costs, either

party may file a request with the Division requesting a final

hearing within 30 days of the date of the rendition of the Final

Order.

11 . On November 15, 2018, AHCA timely filed its Petitio n

for Recovery of AHCAÓs Legal Fees and C osts. On February 7,

2018, AHCA amended its Petition. Covenant opposed AHCA Ós

P etition and disputed whether AHCA is entitled to legal fees.

12 . Covenant has appealed the Final Order in the

Overpayment Case, and the appeal is p ending before the First

District Court of Appeal in C ovenant v. AHCA , Case

No. 1D18 - 4797 .

13 . The final hearing was held on a stipulated record,

PetitionerÓs Memorandum of Law in Support of PetitionerÓs

Amended Petition for Legal Fees, and CovenantÓs Brief in

Opposition to AHCAÓs Petition for Recovery of Costs and Fees

(with e xhibits) . Legal issues were framed by the Joint

Stipulation. There was no testimony of any witnesses offered by

either party.

14 . The exhibits constituting the record were exhi bits to

RespondentÓs B rief and PetitionerÓs Memorandum of Law.

15 . The parties have stipulated to the reason ableness of

AHCAÓs claimed attorneyÓs fees, in accordance with the partiesÓ

agreement stated in the Joint Motion for Case Management

Conference dated March 11, 2019. The issue that remains is

whether AHCA is entitled to re covery of $330,186.14 in

attorneyÓs fees under s ection 409.913(23). For the reasons

explained below, the undersigned finds that Florida law does not

support a finding that AHCA is entitled to the attorneyÓ s fees

in dispute.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the subject ma tter and the parties to this

action in ac cordance with sections 120.569 and 120.57(1),

Florida Statutes (2018 ).

17 . Pursuant to section 409.913, AHCA is the sole agency

authorized to investigate and prosecut e claims for possible

Medicaid fraud, abuse , or overpayment s .

18 . Section 409.913 (23) provides:

(a) In an audit or investigation of a

violation committed by a provider which is

conducted pursuant to this section, the

agency is entitled to recover all

investigative, legal, and expert witness

costs if the agencyÓs findings were not

contested by the provider or, if contested,

the agency ultimately prevailed.

(b) The agency has the burden of

documenting the costs, which include

salaries and employee benefits and out - of -

pocket expenses. The amount of costs that

may be recovered must be reasonable in

relation to the seriousness of the violation

and must be set taking into conside ration

the financial resources, earning ability,

and needs of the provider, who has the

burden of demonstrating such factors.

(c) The provider may pay the costs over a

period to be determined by the agency if the

agency determines that an extreme hardshi p

would result to the provider from immediate

full payment. Any default in payme nt of

costs may be collected by any means

authorized by law.

19 . The standard of proof is a preponderance of the

evidence. § 120.57(1)(j) , Fla. Stat.

20 . The Final Order entered in the Overpayment Case has

determined that Petitioner "ultimately prevailed," as re quired

by section 409.913(23). Based on the stipulation of the

parties, the sole question here is whether AHCA is entitled to

attorneyÓs fees for prevailing in th e Overpayment Case.

Plain Meaning of Statute

21 . AHCAÓs entitlement to attorneyÓs fees under section

409.913 (23) ultimately will turn on the meaning of the term

Ðlegal costs.Ñ

22 . Each party asserts that the Ðplain meaningÑ of the

statute supports their respective positions. AHCA asserts that

section 409.913(23) (a) authorizes it to recover all of the

investigative, legal, and expert witness cost s it incurred to

prosecute the Overpayment C ase, including attorneyÓs fees from

outside counsel. AHCA further argues that a providerÓs costs

may be reduced based on factors outlined i n section

409.913(23)(b).

23 . By contrast, Covenant asserts a different reading of

the statute based on the plain mea ning of section 409.913 (23) .

Covenant takes the position that section 409.913(23) only

provides that AHCA is entitled to its Ðlegal costsÑ without any

reference to Ðlegal fees.Ñ Covenant also asserts that Florida

law does not support the expansion of the term Ðlegal cos tsÑ to

include attorneyÓs fees.

2 4 . Despite the parties ' assertion that the Ðplain

meaningÑ of section 409.913(23) controls in this matter , they

differ in their interpretation of the statute. Covenant argues

the statu te must be strictly construed because the statu t e is in

derogation of common law. On the other hand, AHCA argues that

section 409.913(23) is remedial and , thus, it must be liberally

construed. Under either analysis, there is not sufficient

support to interpret Ðlegal costsÑ as including attorneyÓs fees.

Strict Construction

25 . Under Florida law , statutes awarding attorneyÓs fees

to a prevailing party are in derogation of the common law

ÐAmerican Rule , Ñ the well - established law in Florida that each

party pays its own fee s, and , therefore , must be strictly

construed. See Johnson v. DepÓt of Corr. , 191 So. 3d 965, 968

(Fla. 1st DCA 2016). A strict construction of the plain

language of section 409.913(23) requires that the term ÐcostsÑ

be given its exact and technical mean ing in Florida, which does

not inclu de attorneyÓs fees.

26 . In Florida , legal costs and attorneyÓs fee s do not

have the same meaning. Johnson v. Jarvis , 107 So. 3d 428

(Fla. 1st DCA 2012). ÐCostsÑ are generally not considered

attorneyÓs fees. Price v. Tyler , 890 So. 2d 246, 252

(Fla. 2004). See also Wiggins v. Wiggins , 446 So. 2d 1078

(Fla. 1984).

27 . In Price , the statutory provision provided that Ð[t]he

party recovering judgment shall recover all o f his or her legal

costs.Ñ Id. The Supreme Cour t ruled that Ð[i]n this action,

the trial court should not have inc luded attorneyÓs fees as

ÒcostsÓ because Section 57.041 does not include attorneyÓs fees

in the definition of litigation costs.Ñ Id. at 253.

28 . It is worth noting that, expressio unius est exclusio

alterius applies here in that the mention of one thing imp lies

the exclusion of another. Ð[W]here a statute enumerates the

things on which it is to operate, or forbids certain things, it

is ordinarily to be construed as excluding from i ts operation

all those not expressly mentioned.Ñ See Thayer v. State ,

335 So. 2d 815, 817 (Fla. 1976) .

29 . Here, s ection 409.913(23) lists the costs to be

considered, including investigative, exp ert, and legal costs.

I t does not mention attorneyÓs fees.

Liberal Construction

30 . AHCA argues that section 409.913 should be interpreted

based on liberal construction of the statute because it is a

remedial statute, instead of strict construction.

31 . In Florida, Ð[w]hen a statute is both in derogation of

the common law and remedial in nature, the rule of strict

construction should not be applied so as to frustrate the

legislative intent.Ñ Irven v. DepÓt of Health & Rehab. Servs. ,

790 So. 2d 403, 40 6 (Fla. 2001). Instead, the opposite is true:

ÐThe statute should be construed liberally in order to give

effect to the legislation.Ñ Id .

32 . In Irven , a former child protective investigator sued

the Department of Health and Rehabilitative Services, her

employer, un der the Florida Whistleblower Act. After a jury

verdict in her favor, the Department appealed to the Second

District Court of Appeal (ÐDCAÑ), arguing that the Whistleblower

Act did not waive sovereign immunity for the type of claim the

inv estigator asserted. On appeal, the Second DCA addressed the

Ðdeterminative issueÑ of whether the acts and communications by

the investigator were Ðwhistle - blowerÑ acts, as defin ed and

protected by the Whistleb lower Act. Irven v. DepÓt of Health

and Rehab . Servs. , 790 So. 2d at 403 ( quoting Irven v. DepÓt of

Heath & Rehab. Servs. , 724 So. 2d 689, 699 (Fla. 2d DCA 1999) ) .

33 . In Irven , the Court relied upon the Ðstrict

constructionÑ canon, stating :

ÐI t is clear to us that the ÒWhistle Î

Blower's Act,Ó . . . clearly and

unequivocally waives sovereign im munity for

the purposes of the ÒRemediesÓ and ÒReliefÓ

afforded by subsections 112.3187(8) and (9).

It is equally clear to us , however, that

because any waiver of sovereign immunity

must be clear and unequivo cal . . . , the

waiver must be limited to the acts or

conduct clearly and unequivocally prohibited

or protected against. Therefore, the waiver

must be strictly construed and applied. A

protection against acts not clearly

delineated as prohibited or prote cted must

not be implied. Ñ Id .

34 . While the parties assert that the plain meaning of the

stat ute clearly supports their respective positions, the

undersigned concludes that section 409.913(23) is not clear

under strict or liberal construction regarding whether Ð legal

costs Ñ include attorneyÓs fees.

35 . The parties both address whether AHCA should be

entitled to deference regarding the interpretation of Ðlegal

costs.Ñ However, in this matter the definition of Ðlegal costsÑ

is outside AHCAÓs substantive jurisdiction. See G. E. L. Corp.

v. Dep't of Envtl. Prot. , 875 So. 2d 12 57, 1263 - 64 (Fla. 5th

DCA 2004). But the obvious resemblances between statutes to

recover costs and attorney's fees casts doubt on how a court may

resolve the question of whether the construction of §

409.913(23) is within the substant i al jurisdiction of

Petitioner. Thus, deference would not be a factor here.

Bill Analysis

36 . The parties have each cited to the Final Bill Analyse s

and Economic Impact Statement for CS/ H B 133 (Ð1996 House Bill

Analys i s Ñ) , as providing evidence of the intent of the

Legislature when it amended the statute regarding Medicaid

recovery .

37 . T he issue in this matter is specific to the meaning of

Ðlegal costs.Ñ However, the 1996 House Bill Analysis does not

directly address attorneyÓs fees or the meaning of Ðlegal

costs.Ñ It directly addresses AHCAÓs authority to Ðconduct

federally program integrity, or Medicaid abu se investigatory and

sanctioning activities.Ñ Likewise, in Senate Staff Analysi s and

Economic Impact Statement for CS /S B 118 (Ð1996 Senate Bill

AnalysisÑ) , there is little to offer regarding whether the

L egislature int ended Ðlegal costsÑ to include attorn eyÓs fees.

Joint Report

38 . There is addition al information provided in the j oint

AHCA and Medicaid Fraud Control Unit Report (ÐJoint ReportÑ) ,

which requires AHCA to provide the amount of costs incurred each

year for discovery and prosecution of Medicaid overpayment

annually. This report is submi tted as required by section

409.913 (1) .

39 . AHCA asserts that since it i s required to document

cost s associated with discovering and prosecution of providers

for Medicaid overpayment , the statute contemplates that AHCA

woul d recover its attorneyÓs fees. However, even in the

introductory paragraph and the Joint Report, if the L egislature

intended ÐcostsÑ to include attorneyÓs fees, it would have been

addressed in the statute. Thus, the Joint Report does not

provide persuasive guidance on whether the legislature intended

Ðlegal costsÑ to include attorneyÓs fees.

Definition of Costs

40 . Section 40 9.913 contains no definition for the term

Ðlegal costs.Ñ O ther provisions of the Medicaid statute under

AHCAÒs jurisdiction specifically reference ÐattorneyÓs feesÑ

when such a recovery is intended. See , e.g. , § 409.907(3)(h),

Fla. Stat. It is established in Florida that t he Legislature

clearly knows how to declare its intention to authorize AHCA to

recover attorneyÓs fees when that is its desire. Ð[T]he

Legislature must be assumed to know the meaning of words and to

have expressed its intent b y the use of the words found in the

statute.Ñ See Thayer v. State , 335 So. 2d at 817 .

Other Statutes

41 . Other s tatutes that address recovery of attorneyÓs

fees for prosecution of allegations of non - compliance by

providers or professionals may provide guidance regarding the

definition of Ðlegal costs . Ñ

42 . Looking to l icensee enforcement actions taken by the

Florida Department of Health (ÐDOHÑ), s ection 456.072(4),

F lorida Statutes, authorizes DOH to recover costs related to the

time spent by the attorney and othe r personnel working on the

case and other expenses as the prevailing party in licensee

disciplinary proceedings.

43 . Section 456.072(4), in pertinent part, provides:

(4) In addition to any other discipline

imposed through final order, . . . the

board, or the department when there is no

board, shall assess costs related to the

investigation and prosecution of the case.

The costs related to the investigation and

prosecution include , but are not limited to,

salaries and benefits of personnel, costs

related to the time spent by the attorney

and other personnel working on the case , and

any other expenses incurred by the

department for the case. The board, or the

department when there is no board, shall

determine the amount of costs t o be assessed

after its consideration of an affidavit of

itemized costs and any written objections

thereto.

44 . Although the word ÐfeesÑ does not appear in s ection

456.072(4), that statute explicit ly defines ÐcostsÑ to include

Ð time spent by the attorne y.Ñ S ection 409.913 , by contrast,

does not go as far as extending such a meaning to Ðlegal costs. Ñ

45 . In comparison, s ection 455.227, Florida Statutes, the

Department of Business Professional RegulationÓs counter - part to

the Health Care Practitioner Regulation statute, provides a vast

difference in that it does not allow attorneyÓs fees.

46 . Section 455.227 provides , in pertinent part , as

follows:

(3)(a) In addition to any other discipline

imposed pursu ant to this section or

discipline imposed for a violation of any

practice act, the board, or the department

when there is no board, may assess costs

related to the investigation and prosecution

of the case excluding costs associated with

an attorneyÓs time .

47 . Most important to this case is that section 455.227

clearly provides for costs related to investigation and

prosecution of the case, but excludes attorney Ós fees. Unlike

section 409.913(23), section 455.227 take s the extra step in

defining the ter m Ðlegal costs.Ñ

48 . Based on similar statutes, PetitionerÓs position is

unsupported under Florida law.

Costs Statutes

49 . It is worthwhile to look to the statutes that

specifically award attorneyÓs fees as they may shed light on the

issue of whether Ðlegal costsÑ include s attorneyÓs fees.

50 . Under section 57.105(5) , Florida Statutes, in

administrative proceedings under chapter 120, an administrative

law judge shall award a reason able attorneyÓs fee and damages,

if it is determined that the losing pa rty raised unsupported

claims or defenses.

51 . Under section 57.111, an award of attorneyÓs fees and

costs shall be made to a prevailing small business party

initiated by a state agency, unless the actions of the agency

were substantially justified or special circumstances exist

which would make the award unjust. The purpose of section

57.111 is to deter agencies from brin g ing actions aga inst

persons without having substantial justification for the action.

52 . Section 57.111 (4) (b)1 . outlines in detail the process

for an attorneyÓs fees and costs award , most important here, by

requiring an affidavit that shows the nature and extent of the

services rendered by the attorney , as well as the costs incurred

in preparations, motions, hearings, and appeals in the

proceeding.

53 . Under chapter 120, section 120.595(1)(e), which awards

reasonable costs and attorneyÓs fees to the prevailing party if

the losing party acted for an improper purpose, defines costs as

follows: Ð ÒCostsÓ has the same meaning as the costs allowed in

civil actions in this state as provided in chapter 57. Ñ

54 . When recovering from a losing party, section 57.041(1)

provides th at t he prevailing party shall recover all his or her

Ð legal costs Ñ and charges, which shall be included in the

judgment.

5 5 . When defining the costs that are allowed,

section 57.071 provides as follows:

(1) If costs are awarded to any party, the

following shall also be allowed:

(a) The reasonable premiums or expenses

paid on all bonds or other security

furnished by such party.

(b) The expense of the court reporter for

per diem, transcribing proceedings and

deposi tions, including opening statements

and arguments by counsel.

(c) Any sales or use tax due on legal

services provided to such party,

notwithstanding any other provision of law

to the contrary.

(2) Expert witness fees may not be awarded

as taxable costs unless the party retaining

the expert witness furnishes each opposing

party with a written report signed by the

expert witness which summarizes the expert

witnessÓs opinions and the factual basis of

the opinions, including documentary evidence

and the aut horities relied upon in reaching

the opinions. Such report shall be filed at

least 5 days prior to the deposition of the

expert or at least 20 days prior to

discovery cutoff, whichever is sooner, or as

otherwise determined by the court. This

subsection d oes not apply to any action

proceeding under the Florida Family Law

Rules of Procedure.

56 . Although section 409.913 is specifically related to

recovery of Medicaid payments, even under the general cost

statute, the term Ðlegal feesÑ does not include attorneyÓs fees.

Legal Costs are Not Limited to Those I ncurred by A gency S taff

A ttorneys

57 . Covenant asserts additional theories to advance its

position that AHCA is not entitled to attorneyÓs fees in this

matter.

58 . First, Respondent asserts that any entitlement to fees

would be reserved for only state agency atto rneys and not

outside counsel. That argument, though it seems plausible,

fails t o acknowledge that section 409.913 (23) clearly states

that the agency is entitled to recover Ð all legal costsÑ without

any distinction between those incurred by agency attorneys or

outside counsel.

Entitlement to AttorneyÓs Fees under the Statute, Given I t is a

F ede ral Audit and N ot a S tate A udit

59 . Next, Covenant takes the position, which is contrary

to their position at hearing, that AHCA is not entitled to costs

as the audit was under state law instead of federal law. AHCA

seeks costs under section 409.913(23) Ð[f]or audits or

investigations of a violation committed by a provider which is

conducted pursuant to [section 409.913]. Covenant argues that

section 409.913 does not contemplate audits directed by CMS, a

federal agency, and conducted by Health Integrity, a federal

contractor and , thus, AHCA is not entitled to costs under

section 409.913(23).

60 . This interpretation fails to accept that AHCA is the

state agency responsible for administering the Florida Medicaid

program and required to recover Medicaid overp ayments.

§ 409.913(2), Fla. Stat. When an overpayment is identified,

AHCA is required to recover the overpayment and impose

sanctions, as appropriate. § 409.913, Fla. Stat.

Conclusion

61 . Section 409.913(23) provides AHCA the pathway to

recover Ðlegal costs.Ñ Section 409.913(23) , by it s terms,

however, does not authorize AHCA to recover its attorneyÓs fees.

62 . It is not within the province of this administrativ e

law judge to write in language , e.g., authorizing attorneyÓs

fees, into section 409.913(23). While AHCAÓs positio n is well -

taken, t he undersigned is not at li berty to rewrite section

409.913 (23) in order to reach a desired result.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order that section 409.913(23) (a)

does not authorize the Agency for Health Care Administration to

recover its attorneyÓs fees under the guise of Ðlegal costsÑ for

the audit related to this matter.

DONE AND ENTERED this 12 th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 12 th day of June , 2019 .

ENDNOTE

1/ Although Administrative Law Judges (ALJs) maintain final

order authority in attorney Ós fees statutes under chapter 120

and other statutes, section 409.913(23), Florida Statutes , does

not extend final order authority to ALJs. See Ag. f or Health

Care Admi n. v. Hal M. Tobias , Case No. 13 - 3818MPI ( Fla. DOAH

Feb. 24, 2014; Fla. AHCA Mar. 27, 2014).

COPIES FURNISHED:

Terrie L. Didier, Esquire

Beggs and Lane

501 Commendencia Street

Pensacola, Florida 32591 - 2950

(eServed)

Steven Alfons Grigas, Esquire

Akerman, LLP

Suite 1200

106 East College Avenue

Tallahassee, Florida 32301 - 7741

(eServed)

T homas M. Hoeler, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Bryan K. Nowicki, Esquire

Reinhart Boerner Van Deuren , S.C.

Suite 600

22 East Mifflin Street

Madison, Wisconsin 53701 - 2018

(eServed)

Marion Drew Parker, Esquire

Radey Law Firm

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301 - 1722

(eServed)

Thomas A. Range, Esquire

Akerman LLP

Suite 1200

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Rex D. Ware, Esquire

Moffa, Sutton & Donnini, P.A.

Suite 330

3500 Financial Plaza

Tallahassee, Florida 32312

(eServed)

Joshua D. Taggatz, Esquire

Reinhart Boerner Van Deuren S.C.

Suite 600

22 East Mifflin Street

Madison, Wisconsin 53701 - 2018

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Kim Kellum, Esqu ire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(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.