19-002881 Yaron H. Maya, O.D. vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, September 24, 2019.

Summary: Petitioner demonstrated by clear and convincing evidence that he has been rehabilitated. Recommend granting exemption and permit Petitoner to renew Mediciad provider license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YARON H. MAYA, O.D.,

Petitioner,

vs. Case No. 19 - 2881

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by

video teleconference with locations in Miami and Tallahassee,

Florida, on August 7, 2019.

APPEARANCES

For Petitioner: Erin M. Ferber, Esquire

N icholson & Eastin, LLP

707 Northeast Third Avenue , Suite 301

Fort Lauderdale, Florida 33304

For Respondent: Kimberly S. Murray, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

Whether Petitioner, Yaron H. Maya, O.D. ( " Dr. Maya " ),

provided clear and convincing evidence of rehabilitation; and ,

if so, whether the Agency for Health C are Administration

( " AHCA " ) abused its discretion in denying Dr. Maya ' s request for

an exemption from disqualification from employment as a Medicaid

provider.

PRELIMINARY STATEMENT

By corr espondence dated April 18, 2019 (the " Denial " ) , AHCA

notifie d Dr. Maya that it denied his request for an exemption

from disqualification pursuant to section 435.07, Florida

Statutes. Dr. Maya timely requested an administrative hearing

challenging AHCA ' s decision. On May 29, 2019, AHCA referred the

matter to the D ivision of Administrative Hearings ( " DOAH " ) to

conduct a hearing pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

The final hearing was held as scheduled on August 7, 2019.

Dr. Maya testified on his own b ehalf and called his wife,

Lisa Maya, and AHCA ' s Analyst, Amanda Prochaska, as witnesses.

Petitioner ' s Exhibits 1 through 27 were admitted into evidence

without objection. AHCA pre sented the testimony of

Vanessa Risch, Background Screening Operations Manager , and the

deposition testimony of T aylor Haddock, Manager of the Systems

Management Unit and Director of the Care Provider Background

Screening Clearing House. Respondent ' s Exhibits 1 through 11

were admitted into evidence without objection.

The one - volume Transcript of the proceedings wa s filed

August 22, 2019. The parties timely filed proposed recommended

orders , which were taken into consideration in the drafting of

the Recommended Order. The stipulated facts in the parties '

Joint Prehearing Stipulation have been incorporated herein.

Unless otherwise indicated, references to the Florida Statutes

are to the 2019 version.

FINDING S OF FACT

1. AHCA is designated as the single state agency charged

with protecting the Medicaid program , and in that capacity, it

maintains discretion to appro ve or deny requests for exemption.

2. Dr. Maya is license d to practice optometry in the s tate

of Florida, having been issued license number OPC3250. Dr. Maya

had owned and operated Maya Visio n Center, Inc. , since 2004.

Dr. Maya, whose practice services a historically low - income and

underserved population in Plantation, Florida, provides services

to Medicaid recipients of all ages , which accounts for

approximately 75 percent of his patients.

3. Dr. Maya was originally enrolled as a Medicaid provider

in 1 998. He was most recently re - enrolled as a Medicaid

provider in April 2014 for a five - year period.

4. In 2019, Dr. Maya submitted an application to renew his

Medicaid Provider Enrollment and, as such, was required to

participate in AHCA ' s Level 2 backg round screening pursuant to

section 409.907(8), Florida Statutes.

5. Dr. Maya submitted documentation for the required

background screening, and it revealed that Dr. Maya pled nolo

contendere to grand theft on February 25, 2009, and the court

" withheld ad judication " of one count of section 812.014(2)(c),

Florida Statutes, a third degree felony. The offense is a

disqualifying offense pursuant to section 435.04(2)(m), Florida

Statutes.

6. All terms of the 2009 criminal case disposition were

completed, in cluding the immediate pa yment of restitution of

$25,000; and Dr. Maya was placed on 12 months ' probation and

granted an early termination of supervision on November 12,

2009, after only six months of supervision.

7. In accordance with section 435.04(2), D r. Maya ' s no lo

contendere plea to a felony in violation of section

812.014(2)(c), disqualified him from working as a Medicaid

provider. This criminal conviction makes Dr. Maya ineligible to

provide service s in the Medicaid p rogram overseen by AHCA unless

Dr. Maya receives an exemption from AHCA, pursuant to section

435.07.

8. Dr. Maya submitted an application for exemption to AHCA

on or about February 11, 2019, which was denied on April 18,

2019. The Denial stated that AHCA considered the following

facto rs , including , but not limited to:

a. the circumstances surrounding the

criminal incident for which an exemption is

sought;

b. the time period that has elapsed since

the incident;

c. the nature of the harm caused to the

victim;

d. a history of t he employee since the

incident; and any other evidence or

circumstances indicating that the employee

will not present a danger if continued

employment is allowed.

AHCA stated that it determined that Dr. Maya had not provided

clear and convincing evidence of rehabilitation as required by

Florida law.

Nature of the 2008 Disqualifying Offense

9. In 2008, employees from the Medicaid Fraud Control Unit

came to Dr. Maya ' s office and requested 18 months of Medicaid

patient records, which he provided. A Med icaid Fraud Control

Unit investigator conducted interviews with ten of Dr. Maya ' s

patients that were Medicaid recipients.

10. The medical records and interviews revealed Dr. Maya

billed for providing tinted lens, glasses, and for additional

of fice visits that were not adequately documented. Dr. Maya was

subsequently charged with grand theft as a result of

overcharging Medicaid patients for services that could not be

verified with documentation.

11. On the advice of counsel, Dr. Maya pled no contest to

the charge of grand theft, and he was placed on 12 months '

probation and ordered to pay restitution of $25,000. As a

result of this criminal incident, Dr. Maya was disciplined by

the Department of Health , Board of Optometry because he was a

licensed optometrist when the crime occurred. The Board of

Optometry filed an administrative complaint on February 17,

2010 , and, as a result, his license was reprimanded and he was

placed on probation with a stayed suspension for one year. At

no time d id Dr. Maya lose his license to practice optometry.

Dr. May a ' s 2014 New Application Granted by AHCA

12. On July 22, 2013, in connection with his first

Provider Enrollment Renewal Application after his criminal

sentencing, Dr. Maya submitted an applic ation to AHCA for

Exemption from Disqualification from Employment . On August 9,

2013, AHCA issued the Denial of Dr. Maya ' s request for Exemption

from Disqualific ation. On August 28, 2013, Dr. Maya filed a

Petition for Formal Administrative Heari ng in con nection with

AHCA ' s denial which was referred to DOAH on September 11, 2013.

13. On October 31, 2013, during the pendency of that DOAH

appeal, Dr. Maya was advised by Zach Masters, a Health Services

and Facilities Consultant in AHCA ' s Background Scr eening Unit,

that having the charges sealed would clear up the background

screening issue, because sealed or expunged charges were not

considered disqualifying by AHCA. Dr. Maya thereafter had his

criminal record sealed.

14. On February 14, 2014, K atherine Heyward, Assistant

General Counsel at AHCA, notified Dr. Maya by written

correspondence that " [h ]e is no longer deemed to be disqualified

for purposes of his background screening " pursuant to

section 435.04(2), as his criminal record has been seal ed. AHCA

issued a Final Order on March 31, 2014, dismissing the case as

moot.

15. Accordingly, after having his record sealed, Dr. Maya

dropped the appeal on the issue of exemption (because he was

told by AHCA that it was not necessary) and submitte d a new

provider enrollment application. He was subsequently re -

enrolled in the Medicaid program in April 2014. Although his

records were sealed, Dr. Maya still disclosed all the facts

regarding his previous charge. In April 2014, AHCA enrolle d

Dr. Maya for a five - year period as a Medicaid provider.

Internal Policy Change in 2015 at AHCA

16. According to the deposition testimony of

Taylor Haddock, AHCA ' s Unit Manager of the Central Intake Unit

and Director of the Care Provider Background Screening Clearing

House, in 2014, the Background Screening Unit ( " BGS " ) did not

consider any sealed offenses for purposes of disqualification

for a Level 2 background check.

17. However, in 2015, the BGS was audited by the Agency ' s

Inspector General Unit ( " IG " ). After completing the audit, the

IG issued Report 15 - 08 ( " Report " ) in May 2016 that found, " the

BGS Exemption section, at the time of our review, did not review

sealed criminal history records on adults. "

18. In relevant part, the Report states:

According to Office of General Counsel (OGC)

staff, section 408.809, F.S. authorizes, but

does not require , the Agency to review non -

juvenile sealed or expunged records in

reviewing an applicant ' s criminal history.

* * *

Although Exemption staff members have access

to an individual ' s sealed adult criminal

history record through the Clearinghouse,

the [y] did not review it as part of the

exemption application process. Excluding

these sealed records may result in persons

who have committed disqualif ying offenses

being determined eligible by BGS staff.

* * *

In a Memorandum dated September 16, 2015, to

the Inspector General ' s Office, OGC staff

determined that " pursuant to Section

408.808, AHCA can review such records when

determining backgro und screening eligibility

for every person it screens, unless such

sealed or expunged records are juvenile

delinquency records, which are specifically

exempt under the statute. (Emphasis added).

19. Apparently, as a resu lt of the audit, as of

Decem ber 2015, the policy of AHCA ' s BGS Exemption section was

changed to include the review of non - juvenile sealed offenses

when considering applications f or exemption. According to

Ms. Haddock, AHCA undertook no effort to promulgate a rule in

this regard.

20. In fact, despite the IG ' s finding in the Report that

the lack of guidelines and processes in the BGS Exemption unit

would potentially result in similar exemption cases being

processed differently depending on the individual reviewers

experience an d training, AHCA made no attempt to promulgate any

rules or standards for exemption reviews. Ms. Haddock admitted

that it is possible for individual exemption cases to be

processed differently depending on the individual staff handling

the case.

AHCA ' s 20 19 Denial

21 . As a result of this internal policy change to consider

sealed non - juvenile records, Dr. Maya was notified that his 2019

renewal application was denied . He then timely requested an

exemption from disqualification.

22 . The final de cision on Dr. Maya ' s Exemption Request was

made by Respondent ' s upper management and was based on the

information and facts represented in the " Exemption Application

Package " ( " Package " ). A " Background Screening Exemption

Teleconference Worksheet " and " Ex emption Decision Summary " are

completed by AHCA staff prior to the time the Package is

submitted to upper management and are included in the Package.

23 . Amanda Prochaska, Health Care Facilities Consultant

with the BGS , who worked for AHCA for one year, conducted the

background investigation for Dr. Maya ' s 2019 exemption

application. The Package was also reviewed for completeness by

Vanessa Risch, Operations and Management Consultant Manager of

the BGS , who has been employed with AHCA for four year s.

However, she did not make any recommendation regarding whether

to grant the exemption application.

24 . Ms. Prochaska testified that " rehabilitation can be --

generally, for us, it ' s classes " and " can be a plethora of

different things, depending on the nature of the charge. "

Ms. Prochaska further testified that, " [r] ehabilitation can

sometimes mean drug treatment programs, classes, that sort of

thing. "

25 . Ms. Prochaska testified that in this case,

rehabilitation is " going to include classes, anything that they

have done to, basically, rectify in the actual charge itself. "

In other words, the required rehabilitation must be commensurate

with the alleged conduct in the underlying charges.

26 . Ms. Prochaska inaccurately documented Dr. Ma ya ' s

rehabilitation efforts , which are clear and convincing and

commensurate with the alleged conduct in the underlying charges.

27 . As part of the application review process, AHCA

conducts a recorded teleconference with the applicant " to give

them an opportunity to tell us in their own words basically

what ' s taken place with their past, and to give us an overall

view of their background, and what ' s taken place since then. "

The teleconference is also summarized in the general notes of

the analyst " t o make sure that anything that [they ' re] listening

to, obviously, [they ' ve] documented that correctly for the

case. " These notes are then submitted as part of the package to

upper management.

28 . As pertains to Dr. Maya ' s 2019 renewal application,

upper management did not attend or independently review the

recorded teleconference and instead relied on the records

compiled and prepared by Ms. Prochaska.

29 . The Background Screening Exemption Teleconference

Worksheet incorrectly states there was " No Rehab. " During the

teleconference, Dr. Maya explained the closure of one office

location, the implementation of an electronic health records

system, and the hiring of a full - time practice manager.

30 . The Background Screening Exemption Teleconf erence

Worksheet also incorrectly states that " [Dr. Maya] wishes he

would have ' slowed down ' and paid more attention to the care of

his patients and less on the Medicaid end; ' checks and

balances. '"

31 . During the recorded teleconference, Dr. Maya actually

stated:

I just want answer this question, because I

believe if I did slow down, and if I didn ' t

op en two practices, and I spent -- close to

home, and I ' ll try to do -- just see as many

p atients as I can just, I just -- I think I

never been -- and I cared about -- my tho ught

was concentrating on the -- on the medical

part, on seeing the patients, do the right

thing, and give them their glasses, take

car e of their medical needs, and -- and no t

pay that much attention to -- to the practice

management -- to the paperwo rk, the other

parts that the medical doctor has to do,

and -- so if I can do it all over again, if I

could change, I would change my practice,

and close to home, and see less patients,

and I would hire, like I did before, hire

more employees. I changed my e lectronic

health records. I did so many things just

so there will be chec ks and balances, and

not only -- and I don ' t look only just at the

patients that needs to get glasses or

conta cts for medical care, but I -- I have an

oversight, 100 percent, on the othe r

patient, from step one to the last step of

the billing, and getting pai d, something

that I lacked 10 -- 10 years ago, so. . . . "

32 . Dr. Maya ' s statement regarding the prior events

reflects his acknowledgement that he failed to pay enough

attention to the administrative requirements of his practice

which led to improper billing and his criminal charges. He has

done everything within his power to see that these billing

issues never recur.

33 . The Exemption Decision Summary correctly states tha t

Dr. Maya " has paid all sanctions and completed all ordered

sentencing provisions. " In fact, Dr. Maya immediately paid

restitution and was granted an early termination of supervision

on November 12, 2009.

34 . The Exemption Decision Summary incorrec tly indicates

Dr. Maya has " No Employment History " and " No Health Care

Training. " However, Dr. Maya fully disclosed his employment

history and education and training in s ections thre e and four of

the Application for Exemption.

35 . Dr. Maya also sub mitted a Statement of Rehabilitation

to AHCA , which describes, among other things, Dr. Maya ' s

continuing education and training, including courses in

jurisprudence, medical errors, fraud, waste, and abuse.

36 . In response to a request from AHCA for additional

employment information, Dr. Maya submitted a statement verify ing

his self - employment as the owner/o ptometrist for Maya Vision

Center since 2004.

37 . Dr. Maya also explained in his application that he

sees approximately 150 patients a we ek in his practice. He has

no grievances or claims of malpractice against this license. He

is also a provider in good standing with most major medical and

vision insurance plans.

38 . The Exemption Decision Summary also incorrectly

indicates " [n] o rehabilitation was required or taken

voluntarily. " In fact, Dr. Maya submitted a Personal Statement

in which he describes the significant rehabilitative efforts

which match the underlying disqualifying offense (theft as a

result of inadequate or erroneou s billing practices and lack of

documentation) undertaken as described herein.

39 . Dr. Maya also submitted myriad references from

colleagues in the community. These positive recommendations

include the following:

a. Lisa March, M.S., CRC ChildNet

ChildNet Guardians continue to take children

to Dr. Maya ' s office and ChildNet request

that they do, knowing we can trust Dr. Maya

to do the very best for our children. The

office personnel are pleasant, courteous and

professional, providing the best ca re for

our children. This agency ' s Medical staff

contact Dr. Maya to discuss treatment plans

and payment and find Dr. Maya ' s fees to be

reasonable.

b. John R. Davis, O.D. Clinical Vision

Director, EyeQuest

As a participating provider for these Plans

Dr. Maya has shown a high level of

professionalism, p atient satisfaction, and

has performed exceptionally on any quality

or medical record review initiative. We

have been very happy with his willingness to

see all members, including Medicaid

enrollees, without issue.

c. Eric Davis, Residential Manager, SOS

Children ' s Village Florida

I can attest that Dr. Maya holds high

standards regarding moral character and

integrity. He utilizes his skill

effectively and I completely trust our

children in his han ds. No matter how young,

old, troubled or indifferent our children

may be, Dr. Maya treats them with the same

respect and fairness as any other patient

and for that, I am beyond grateful.

40 . AHCA ' s Package contains incomplete, misleading, and

inac curate information as it relates to Dr. Maya ' s

rehabilitation, his history of employment, and health care

training. Unfortunately, upper management was not privy to all

relevant information at the time of making its decision

regarding the application from exemption.

Dr. Maya ' s Rehabilitation

41 . There is no dispute that Dr. Maya immediately paid all

sanctions and completed all sentencing provisions.

42 . As a result of the investigation and criminal charge,

Dr. Maya significantly modified his pr actice. He closed one of

his two office locations in order to better focus on time

management and administrative responsibilities.

43 . In order to prevent any recurrence of billing errors

or omissions, Dr. Maya implemented many changes in his practi ce

to ensure that every service is documented, charges are

reconciled with medical records before any claim is submitted,

and every line item is reviewed following receipt of payment. A

comprehensive electronic health records system was implemented

in Dr. Maya ' s office so that errors would not occur and a full -

time administrative manager was hired. Dr. Maya ' s wife,

Mrs. Lisa Maya, who works in the practice handling billing,

testified at length regarding the multiple levels of checks now

done by the practi ce to make sure every procedure is fully

documented and properly billed.

44 . Dr. Maya also participates in local organizations,

including the Broward County Optometry Association, which holds

quarterly meetings during which various industry topics ar e

discussed, including practice management.

45 . Dr. Maya has continuously provided low - cost and free

optometry service to children in the Broward County foster care

system and to veterans.

46 . At all times material hereto, Dr. Maya has maintain ed

his optometry license. With the exception of a brief period of

time between 2013 and 2014, when he was actively attempting to

have the underlying criminal record sealed and his new Medicaid

enrollment application was pending, Dr. Maya has been an

enrol led Medicaid provider.

47 . With the exception of the investigation in 2008,

Dr. Maya has never been the subject of any complaint or

investi gation by the Florida Medicaid p rogram. " There is no

record of discipline in Dr. Maya ' s Medicaid Provider enro llment

file since February 14, 2014. " See Pe t. Ex. 24, pp. 107 - 109 .

48 . There is also no evidence of any prior or subsequent

criminal history for Dr. Maya.

49 . Significantly, there was no evidence or allegation in

this proceeding that Dr. Maya in any way injured a patient or

conducted himself as a clinician in anything other than

consistent with applicable medical standards. The evidence

shows that during his tenure as a Medicaid provider, Dr. Maya

has provided excellent service to his patient s and community.

Ultimate Findings of Fact

50 . Nothing has changed since Dr. Maya was approved as a

Medicaid provider in 2014, other than AHCA ' s internal policy

change regarding the review of sealed criminal records of

adults.

51 . Dr. Maya has been an upstanding, well - respected

physician and member of his community who has contributed

greatly to his profession and the underserved in need of his

skilled professional services.

52 . Under the particular circumstances of this case, there

is n o evidence that would indicate that Dr. Maya would present a

danger if granted an exemption and allowed to continue as a

Medicaid provider. To the contrary, the evidence presented at

hearing demonstrates that patients and persons within Dr. Maya ' s

communi ty have benefited, and wil l continue to benefit, from

Dr. Maya ' s optometry services through Medicaid. The only danger

evident here would be that the Medicaid population would not be

able to obtain optometry services if Dr. Maya were not granted

an exempti on from disqualification.

53 . The clear and convincing evidence presented at the

final hearing demonstrates that Dr. Maya is fully rehabilitated

from his offense that occurred more than ten years ago and that

he poses no danger to any vulnerable popu lation if continued

employment as a Medicaid provider is allowed

CONCLUSIONS OF LAW 1/

54 . DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to sections 120.569,

120.57(1), and 435.07, Florida Statutes.

55 . There is no question that Dr. Maya committed a

disqualifying offense. However, the agency head may grant to

any person otherwise disqualified from being a Medicaid provider

an exemption from disqualification for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the

exemption has completed or been lawfully

released from confinement, supervision, or

nonmonetary condition imposed by the court

for the disqualifying felony; . . . .

56 . To be eligible for an exemption, Dr. Maya must

demo nstrate by clear and convincing evidence that he should not

be disqualified from being a Medicaid provider because he is

rehabilitated. § 435.07(3)(a), Fla. Stat.; J.D. v. Fla. Dep ' t

of Child. & Fams. , 114 So. 3d 1127, 1131 (Fla. 1st DCA

2013)( " the ultima te issue of fact to be determined in a

proceeding under section 435.07 is whether the applicant has

demonstrated rehabilitation by clear and convincing evidence. " ).

This is a heavy burden. Smith v. Dep ' t of Health and Rehab.

Servs. , 522 So. 2d 956, 958 ( Fla. 1st DCA 1988). Dr. Maya has

the burden of setting forth clear and convincing evidence of:

[R]ehabilitation, including, but not limited

to, the circumstances surrounding the

criminal incident for which an exemption is

sought, the time period that has elapsed

since the incident, the nature of the harm

caused to the victim, and the history of the

employee since the incident, or any other

evidence or circumstances indicating that

the employee will not present a danger if

[Medicaid provider status] is all owed.

§ 435.07(3)(a), Fla. Stat.

57 . The " clear and convincing evidence " standard requires

that the evidence must be found credible, the facts to which the

witnesses testify 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 trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be esta blished. In re Davey , 645 So.

2d 398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

58 . Pursuant to section 435.07, even if rehabilitation is

shown, the applicant is only eligible for an exemption, not

entitled to o ne. AHCA retains discretion to deny the exemption,

provided its decision does not constitute an abuse of

discretion. J.D. , 114 So. 3d at 1127. Discretion, in this

sense, is abused when the proposed agency action is arbitrary,

fanciful, or unreasonable, which is another way of saying that

discretion is abused only where no reasonable person would take

the view adopted by the agency. If reasonable persons could

differ as to the propriety of the proposed agency action taken,

then the action is not unreason able, and there can be no finding

of an abuse of discretion. Canakaris v. Canakaris , 382 So. 2d

1197, 1203 (Fla. 1980).

59 . Because section 435.07 represents an exemption from a

statute enacted to protect the public welfare, it must be

" strictly co nstrued against the person claiming the exemption. "

Heburn v. Dep ' t of Child . & Fams. , 772 So. 2d 561, 563 (Fla. 1st

DCA 2000).

60 . As detailed in the Findings of Fact contained herein,

Dr. Maya met his heavy burden in this de novo chapter 120

procee ding of presenting clear and convincing evidence of

rehabilitation. At hearing, the undersigned had the distinct

opportunity to observe the demeanor and credibility of Dr. and

Mrs. Maya. AHCA did not have the benefit of this testimony when

it formulated its proposed action to deny Dr. Maya ' s exemption

request.

61 . Further, the undersigned had the opportunity to listen

to the recording of the Background Screening Exemption

Teleconference and review all of the exemption application

materials provided by Dr. Maya that were not accurately

portrayed in the Package relied upon by the decision Î makers.

62 . Consideration of the compelling testimonial evidence

presented at the final hearing and the full exemption

application materials, which were not mad e available at the time

AHCA proposed to deny Dr. Maya ' s exemption request, leads the

undersigned to conclude that it would be an abuse of discretion

to deny the exemption, and that AHCA should exercise its

discretion in favor of granting Dr. Maya ' s exempt ion from

disqualification.

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 granting Dr. Maya ' s renewal

application as a Medicaid provider be cause of an exemption from

disqualification as a Medicaid provider.

DONE AND ENTERED this 24th day of September , 2019 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administr ative 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 24th day of September , 2019 .

EN DNOTE

1/ This proceeding was not brought as a rule challenge, nor did

Dr. Maya raise this issue in his proposed recommended order.

However, effective July 1, 2016, section 120.57(1)(e)1. provides

that neither an agency nor an administrative law judge ma y,

" base agency action that determines the substantial interests of

a party on an unadopted rule or a rule that is an invalid

exercise of delegated legislative authority. " Accordingly,

agency action in this case cannot be based upon, or supported

by, refe rence to an unadopted rule. Coventry First, LLC v.

State, Office of Ins. Reg . , 38 So. 3d 200, 203 (Fla. 1st DCA

2010) (quoting Dep ' t of Rev . v. Vanjaria Enters ., Inc. , 675 So.

2d 252, 255 (Fla. 5th DCA 1996)).

As a preliminary matter, AHCA ' s policy, that it must now

review the sealed records of adults, as articulated in its

proposed recommended order and the testimony of AHCA staff, has

the characteristics of a rule. It is an agency statement of

general applicability implementing, interpreting, or p rescribing

policy. It describes the procedure and practice requirements of

the agency. See Dep ' t of Rev. of State of Fla. v. Vanjaria

Enter s ., Inc. , 675 So. 2d at 252. It was " unadopted " because

rulemaking procedures were not followed.

However, it is " readily apparent " from the statute itself

that AHCA must review sealed criminal histories of adults. As

explained by AHCA, this change in the policy of reviewing sealed

records was necessary to comply with AHCA ' s statutory authority

pursuant to sec tion 435.04. Accordingly, it is not considered a

rule. See , e.g. , Amerisure Mut. Ins. Co. v. Dep ' t of Fin.

Servs. , 156 So. 3d 520, 532 (Fla. 1st DCA 2015); St. Francis

Hosp., Inc. v. Dep ' t of Health and Rehab. Servs. , 553 So. 2d

1351, 1354 (Fla. 1st DCA 1989); Gabba - Leaf, LLC v. Dep ' t of Bus.

& Prof'l Reg., Div. of Alcoholic Bevs. and Tobacco , 257 So. 3d

1205 (Fla. 1st DCA 2018).

COPIES FURNISHED:

Erin M. Ferber, Esquire

Nicholson & Eastin, LLP

707 Northeast Third Avenue , Suite 301

Fort Lauderdale, F lorida 33304

(eServed)

Kimberly S. Murray, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Sto p 3

Tallahassee, Florida 32308

(eServed)

Kim Kellum, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail St op 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)

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.