19-000124EXE Riguel Gonzalez-Salcerio vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, August 5, 2019.

Summary: Petitioner does not have disqualifying offenses. Even if he did, clear and convincing evidence demonstrates he is rehabilitated and that it would be an abuse of discretion to deny exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RIQ UEL GONZALEZ - SALCERIO,

Petitioner,

vs. Case No. 19 - 0124EXE

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case cam e before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing by video teleconference on March 18 and May 17, 2019, at

sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Barry M. Wax, Esquire

Law Offices of Barry M. Wax

701 Brickell Avenue , Suite 1550

Miami, Florida 33131

For Respondent: Susan Sapoznikoff, Esquire

Kimberly S. Murray, Esquire

Agency f or Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

Whether Petitioner, Riq uel Gonzalez - Salcerio

( " Dr. Gonzalez " ), has disqualifying offenses under section

4 35.0 4(4), Florida Statutes; if so, whether Dr. Gonzalez has

demonstrated rehabilitation by cle ar and convincing evidence;

and, if so, whether Respondent, Agency for Health Care

Administration ' s ( " AHCA " ) , intended action to deny

Dr. Gonzalez ' s request for an e xemption from disqualification

constitutes an abuse of discretion.

PRELIMINARY STATEMENT

In a letter dated Octo ber 19, 2018, AHCA notified

Dr. Gonzalez that his request for an exemption from

disqualification as a Medicaid provider was denied.

Dissatisfied with the decision, Dr. Gonzalez timely requested a

formal administrative hearing. Subsequently, on January 7,

2019, AHCA referred this matter to the Division of

Administrative Hearings ( " DOAH " ) to assign an Administrative Law

Judge to conduct the final h earing. On January 16, 2019, the

undersigned set the final hearing for March 18, 2019.

The final hearing commenced on March 18, 2019, and

concluded on May 17, 2019, with both parties present. At the

hearing, Dr. Gonzalez testified on his own behalf and presented

the additional testimony of Dr. Mario Cala, Paula Camacho,

Anthony Kirchner, and Estefany Garcia. Dr. Gonzalez ' s

Exhibits 1a through 1r were received in evidence based on the

stipulation of the parties. AHCA presented the testimony of

Vanessa Risch and James Gaddis. AHCA ' s Exhibits 1a through 1g

and 2 through 11 were received in evidence based on the

stipulation of the parties. AHCA ' s unopposed motion for

offic ial recognition was granted. The one - volume final hearing

Transcript from the Marc h 18, 2019, hearing was filed on May 10,

2019. The one - volume final hearing Transcript from the May 17,

2019, hearing was filed on July 8, 2019.

AHCA timely submitted a prop osed recommended order on

July 18, 2019. However, Dr. Gonzalez ' s proposed recommended

order was not received at DOAH until after 5:00 p.m. on July 18,

2019. As a result, pursuant to F lorida Administrative Code

Rule 28 - 106.104(3), Dr. Gonzalez ' s proposed recommended order

was not deemed filed at DOAH until 8:00 a.m. on July 19, 2019.

On July 22, 2019, Dr. Gonzalez filed a motion to accept the

proposed recommended order as timely. Although the motion

indicates that AHCA objects to the motion, no response has been

filed in opposition to the motion , and the deadline to file a

resp onse pursuant to r ule 28 - 106.204(1) has expired . In any

event, t here is no prejud ice to AHCA because of the late - filed

proposed recommended order. Accordingly, Dr. Gonzalez ' s motion

is granted, and the parties ' proposed recommended orders have

been consi dered in the preparation of this Recommended Order.

The stipulated facts in the parties ' Amended Joint Pre -

hearing Stipulation have been incorporated herein. Unless

otherwise indicated, references to the Florida Statutes are to

the 2018 version.

FI NDING S OF FACT

1. Dr. Gonzalez is a 53 - year - old licensed podiatric

physician seeking to qualify, pursuant to section 435.07, to re -

en roll as a Medicaid provider, which requires compliance with

background screening standards set out in section 435.04(4). 1/

2. AHCA is the s tate agency responsible for administration

of the Medicaid program in Florida, including the issuance of a

Medicaid provider number for which Dr. Gonzalez seeks to

qualify.

3. In 1990, Dr. Gonzalez, who is of Cuban descent,

received a medical degree from Central University in Las Villas,

Cuba. Following graduation, Dr. Gonzalez entered a three - year

residency program in invasive cardiology at the Cardiac

Institute in Havana, Cuba. Upon completion of the residency

program, Dr. Gonzalez practiced cardiology at the Central

Institute of Cardiology in Las Villas.

4. In 1997, Dr. Gonzalez traveled from Cuba to Uruguay and

worked at Sanatorio Americano Hospital as the Chief of

Cardiology. While in Ur uguay, Dr. Gonzalez became the c hief of

Ca rdiology for the entire country of Uruguay , and he obtained a

doctorate in diagnostic radiology.

5. In 1999, Dr. Gonzalez decided to leave Uruguay, defect

from Cuba, and live in the United States. In order for

Dr . Gonzalez to be permitted to leave Urugua y and travel

directly to the United States, it was necessary for him to

conceal his Cuban descent. In order to conceal his Cuban

descent, Dr. Gonzalez obtained a fake Florida driver ' s license

in a fictitious name.

6. In 1999, Dr. Gonzalez traveled from Uruguay to the

United States by airline and entered the United States at

M iami International Airport. Once he arrived in Miami,

Dr. Gonzalez did not use the fake driver ' s license at the

airport. Dr. Gonzalez presented to immigration in his own name

and announced his intent to de fect to the United States.

Dr. Gonzalez was immediately accepted as a Cuban refugee,

paroled into the United States, and he is now a permanent

resident of the United States.

7. Following his receipt of a work permit, Dr. Gonzale z

remained in Miami and obtained a job as a medical assistant at

Gables Medical Center, a clinic owned by one of his cousins. As

a foreign doctor, Dr. Gonzalez was able to obtain certification

authorizing him to work as a medical assistant. Dr. Gonzalez

worked at the clinic as a medical assistant from 1999 to 2001.

8. In 2001, Dr. Gonzalez began working at Echofet

Diagnostic Center as an ultrasou nd technician , which was within

the scope of his medical assistance certification. On

October 14, 2003, whil e working a s an ultrasound technician,

Dr. Gonzalez used his fake driver ' s license in an attempt to

cash a check as a favor for Dr. Guillermo Achon, who also worked

at the facility. Dr. Achon wrote a check made payable to the

fictitious name on the driver ' s license and gave the check to

Dr. Gonzalez to cash for him.

9. Dr. Gonzalez took the check and went to a bank.

Dr. Gonzalez presented the check and fake driver ' s license to

the bank teller in an effort to obtain cash. Upon presentment

of the check and the fake driver ' s license to the bank teller on

October 14, 2003, Dr. Gonzalez was immediately arrested for one

count of vi olating section 831 .01 , Florida Statutes

(200 3) (for gery); one count of violating section 812.014 , Florida

Statutes (2003) (grand t h eft); and one count of violating section

322.212(1)(a) , Florida Statutes (2003) (possession of a

counterfeit driver ' s license).

10. Dr. Gonzalez was ultimately charged with only a single

count of vio lating section 322.212(1)(a), possession of a

counterf eit driver ' s license , a third - degree felony.

Dr. Gonzalez pled guilty to the charge. A djudication was

withhe ld and he was sentenced to two years of probation and was

required to complete community service and an anti - theft course.

Dr. Gonzalez completed his probation early, and he completed the

community service and anti - theft course requirements. 2/

11. In 2006, Dr. Gonzalez left Echofet Diagnostic Center

and decided to enroll in podiatry school. In 2007, Dr. Gonzalez

was accepted to podiatry school at Barry University. During

this time period, Dr. Gonzalez was also working for Dr. Roberto

Rivera, a radiologist in Miami.

12. While working for Dr. Rivera, Dr. Gonzalez read and

interpreted radiological scans , such as X - rays and CT scans. At

that tim e, Dr. Gonzalez was not legally authorized to read and

interpret radiological scans because he was not licensed by the

State of Florida as a physician. As a result of his conduct, on

June 13, 2007, Dr. Gonzalez was arrested for 36 counts o f

violating sect ion 817.234 , Florida Statutes (2006)

(false/fraudulent insurance cl aims); three counts of violating

section 812.014 (2006) (grand theft, third deg ree); and 36 counts

of violating section 456.065(2)(d)1. , Florida Statutes

(2006) (unlicensed practice of health care).

13. Dr. Gonzalez was ultimately charged with only a single

count of violating section 456.065(2)(d)1. (unlicensed practice

of health care) , a third - degree felony . Dr. Gonzalez pled

guilty. Adjudication was withheld and he was sentenced to five

years of probation, required to complete community service, and

ordered to pay restitution of $6,875.00 and costs of $1,557.60.

Dr. Gonzalez also agreed to cooperate with the investigation and

prosecution of two other defendants. Dr. Gonzalez completed his

probation early, and he completed the community service and

restitution requirements.

14. Dr. Gonzalez contends that the October 14, 2003,

criminal offense of pos session of a counterfeit driver ' s license

and June 13, 2007, criminal offense of unlicen sed practice of

health care are not disqualifying criminal offenses.

15. As discussed in more detail below in the Conclusions

of Law, the October 14, 2003, criminal offense of possession of

a counterfeit driver ' s license, in violation of section

322.21 2( 1)(a) , and the June 13, 2007, criminal offense of

unlicensed practice of health care, in violation of section

456.06 5(2)(d) , are not disqualifying criminal offenses.

However, even if these two offenses are disqualifying,

Dr. Gonzalez has demonstrated reha bilitation by clear and

convincing evidence.

16. At hearing, Dr. Gonzalez accepted full responsibility

for the two criminal offenses that AHCA considered

disqualifying.

17. Dr. Gonzalez has had no arrests or other criminal

history since his arrest on Ju ne 13, 2007, and the resulting

offense of unlicensed practice of health care.

18. In 2011, Dr. Gonzalez completed the podiatry program

at Barry University that he began in 2007 and obtained a medical

degree in podiatric medicine. After graduation, Dr. G onzalez

entered a residency program in foot and ankle reconstructive

surgery at Mercy Hospital in Miami, which he completed in 2014.

19. In 2014, Dr. Gonzalez applied for his medical license

with the State of Florida, Department of Health, Board of

Medici ne. During the application process, Dr. Gonzalez

disclosed all of his criminal history. The Board of Medicine

initially denied the license. However, Dr. Gonzalez appeared

before the Board of Medicine, and following a hearing, he was

granted a license. Since that time, Dr. Gonzalez has

continuously maintained his license to practice podiatric

medicine in Florida.

20. Since becoming licensed in 2014, Dr. Gonzalez has

specialized in foot and ankle surgeries. He is well - known and

an active and respecte d member of the M iami and south Florida

communities .

21. Dr. Gonzalez has privileges at Mercy Hospital and

Larkin Community Hospital, Palm Springs campus. Dr. Gonzalez is

only one of three podiatric physicia ns in Miami who perform

total ankle replaceme nts.

22. Dr. Gonzalez ' s of fice practice , Dr. Riq uel Gonzalez

DPM, PA, is located at 1435 West 49th Place, Suite 604, Hialeah,

Florida 33012. In his practice, he has approximately 6,000

patients, seeing 40 to 5 0 patients a day. More than 70 percent

of his practice is surgical and 30 percent of his patients are

covered under the Medicaid program .

23. In addition to his medical practice, Dr. Gonzalez is a

professor at Barry University, teaching podiatric surgery, foot

and ankle surgery, and radiolo gy. While at Barry University,

Dr. Gonzalez has r eceived the honor of Professor of t he Year.

Dr. Gonzalez has also received a national award from the Foot

and Ankle Society as one of the top ten podiatrists in the

United States.

24. Dr. Gonzalez is a lso the current director of the

residency program at Larkin Community Hospital, Palm Springs

campus. As director, Dr. Gonzalez supervises nine residents,

who also train in his office and assist in surgeries under his

supervision.

25. Dr. Gonzalez also s pends substantial time as a

volunteer in his local community and elsewhere on behalf of

various charitable causes. He treats the homeless at Camillus

House, a homeless shelter in the Miami area. Dr. Gonzalez

brings his residents to the shelter, and they perform basic

podiatric care , such as cleaning feet and clipping nails.

26. Dr. Gonzalez travels to Mexico with other physicians

and residents for medical missions, providing podiatric surgical

services for patients, particularly children, who have no

m edical insurance or ability to pay. Since 2011, Dr. Gonzalez

has travelled annually to different locations where he provides

free podiatric services. Presently, Dr. Gonzalez is planning a

trip to Columbia to conduct similar medical mission work.

27. In addition, Dr. Gonzalez donates podiatric medical

equipment to new podiatric school graduates.

28. From 2014 until April 2019, Dr. Gonzalez treated

Medicaid patients under a Medicaid provider number issued by

AHCA. In April 2019, AHCA terminated Dr. Gonza lez ' s Medicaid

provider number and agreement. As a result of not having a

Medicaid provider n umber, insurance companies providing Medicaid

coverage have also terminated Dr. Gonzalez as a Medicaid

provider.

29. Nevertheless, Dr. Gonzalez continues to tre at Medicaid

patients in his office free of charge. However, Dr. Gonzalez is

not permitted to perform surgery on Medicaid patients at a

hospital because he is no longer a Medicaid provider.

30. Since 2014, Dr. Gonzalez has never had an issue with

Medicaid billing for services performed. He has never received

an overpayment notice, none of his billings have been

questioned, and he has complied with the Medicaid provider

requirements.

31. At hearing, Dr. Gonzalez presented the testimony of

Dr. Mario Cala, a fellow podiatric surgeon in Miami. In 2008,

Dr. Cala received his degree in podiatric medicine from Barry

University, and he has practiced in Miami for the past eight

years. He has known Dr. Gonzalez for approximately 15 years.

Un til recently, Dr. Cal a was the c hief of Podiatry at Jackson

Memorial Hospital in Miami.

32. When Dr. Cala was a fellow at Mercy Hospital,

Dr. Gonzalez was a first - year resident. Dr. Cala testified that

Dr. Gonzalez is one of the best podiatric surgeons in Miami.

Dr. Cala regularly consults with Dr. Gonzalez and refers

patients to Dr. Gonzalez for total ankle replacement surg ery.

Dr. Cala and Dr. Gonzalez have traveled together on medical

mission trips. Dr. Cala is aware of Dr. Gonzalez ' s prior legal

problems. Dr. Cala c redibly and persuasively attested to

Dr. Gonzalez ' s good character and great reputation in the

community . He described Dr. Gonzalez as compassionate, kind,

thoughtful, and humble. There was no cross - examination of

Dr. Cala by AHCA .

33. Dr. Gonzalez al so p resented the testimony of

Paula Camacho. For the past ten years, Ms. Camacho has been a

medical sales distributor for Generation X Technologies, a

company which sells medical devices to assist physicians who

treat patients with lymphedema. She has kn own Dr. Gonzalez for

the past five years, having met him at his office when she was

scheduling a training session on the use of lymphedema pumps.

Dr. Gonzalez is a client of Ms. Camacho and she has observed him

interacting with patients. Ms. Camacho is a lso a member of the

Miami - Dade Podiatric Medical Association, where Dr. Gonzalez has

lectured at association meetings on trends and developments

involving podiatric medicine.

34. Ms. Camacho described Dr. Gonzalez as a " pillar of the

medical community, very well - respected " throughout Miami - Dade

County. Ms. Camacho cre dibly and persuasively attested to

Dr. Gonzalez ' s good character and gr eat reputation in the

community. She described Dr. Gonzalez as trustworthy,

compassionate, kind, thoughtful, and humb le. There was no

cross - examination of Ms. Camacho by AHCA .

35. Dr. Gonzalez also pre sented the testimony of

Anthony Kirchner, a sales representative for Generation X

Technologies. Mr. Kirchner has known Dr. Gonzalez for almost

seven years. As a sales representative, Mr. Kirchner has been

present during surgeries performed by Dr. Gonzalez and other

podiatrists. He also observes Dr. Gonzalez interacting with

residents. Mr. Kirchner described Dr. Gonzalez as " [p]robably

one of the best surgeons I ' ve ev er seen in the whole City of

Miami. Hands down. " Mr. Kirc hner further testified that

Dr. Gonzlaez " puts the patient first " and that he is

" professional " and " hands - on " with residents. Mr. Kirchner

credibly and persuasively attested to Dr. Gonzalez ' s goo d

character, great reputation in the community, and how he is

trustworthy, compassionate, kind, thoughtful, and humble. There

was no cross - examination of Mr. Kirchner by AHCA .

36. Dr. Gonzalez also presented the testimony of his step -

daughter, Estefany G arcia. Ms. Garcia has known Dr. Gonzalez

for the past 15 years. She has also worked at Dr. Gonzalez ' s

medical office for the past two years as an office manager. As

office manager, Ms. Garcia has had the opportunity to observe

Dr. Gonzalez interact with patients. She described Dr. Gonzalez

as a " great person, " and her " second father, " and she testified

that patients are very fond of him. Ms. Garcia credibly and

persuasively attested to Dr. Gonzalez ' s trustworthiness and

great reputation in the communit y. There was no cross -

examinat ion of Ms. Camacho by AHCA .

37. After the presentation of Dr. Gonzalez ' s witnesses,

AHCA recalled Ms. Risch as a witness. Ms. Risch, an AHCA

operations management consultant manager for the past year,

testified that there was information presented for the first

time at the hearing bearing on Dr. Gonzalez ' s rehabilitation,

such as his involvement in the commun ity, mission work, and

provision of podiatric treatment t o patients free of charge.

Ms. Risch acknowledged that thi s additional information

presented at hearing could have affected AHCA ' s decision to deny

the exemption.

38. In addition to the live testimony presented by

Dr. Gonzalez, he provided letters of support from other friends

and colleagues. These letters e xplain or supplement the

substantial testimony at hearing regarding Dr. Gonzalez ' s good

character.

39. In one of the letters dated September 5, 2018,

Ramon Hechavarria, M.D., stated that he has known Dr. Gonzalez

as both a close friend and colleague. D r. Hechavarria first met

Dr . Gonzalez in 1999. Dr. Hechav ar r ia described Dr. Gonzalez as

" one of the most disciplined, intelligent, and dedicated people

I ' ve ever known. " Accordin g to Dr. Hechav a r ria, Dr. Gonzalez ' s

a bility to work efficiently under str essful

conditions and nerve - wracking deadlines

speaks volumes about his hard work,

determination, and composed demeanor.

During all this time he has demonstrated

excellent leadership skills and morale. I

would also like to add that, Riq uel is a

compassio nate human being with praiseworthy

perseverance and ambition. I believe that

he is an indispensable asset for the

Podiatric profession and he has all my

support and admiration.

40. In another letter dated September 6, 2018,

Iris Berges, who is the chief executive o fficer of Larkin

Community Hospital, Palm Beach c ampus , stated that she has known

Dr. Gonzalez for over three years. Ms. Berges stated that her

relationship with Dr. Gonzalez " has been one of mutual

professional respect along with friendship. " Ms. Berges further

stated that Dr. Gonzalez " is a highly respected and skilled Foot

and Ankle Surgeon. He is admired and relied upon by our

physicians. His patients trust and rely on him. "

41. It is abundantly clear, from the credible and

heartfelt testimony of Dr. Gonza lez, Dr. Cala, Ms. Camacho,

Mr. Kirchner, and Ms. Garcia, that Dr. Gonzalez is a responsible

individual and rehabilitated from the two offenses in 2003

and 2007. The incidents in question occurred over a decade ago.

Since 2007, Dr. Gonzalez has lived as a model law - abiding

citizen.

42. Dr. Gonzalez has operated a successful podiatric

medicine practice providing medical treatment to underserved and

underprivileged persons within his community. He has provided

pro bono medical servi ces to patients within his medical

practice and in other communities and other countries on medical

mission trips. Dr. Gonzalez has been an upstanding, well -

respect ed physician and member of his community who has

contributed greatly to his profession, the development of those

aspiring to join his profession, and the underserved in need of

his highl y skilled professional services . Under the particular

circumstances of this case, there is no evidence that would

indicate that Dr. Gonzalez would present a dan ger if granted a

Medicaid p rovider number. To the contrary, the evidence

presented at hearing demonstrates that patients and persons

within Dr. Gonzalez ' s community and elsewhere have benefited,

and wil l continue to benefit, from Dr. Gonzalez ' s podiatric

services through Medicaid . The only danger evident here would

be that the Medicaid population would not be able to obtain

medical surgical services if Dr. Gonzalez were not granted a

Medicaid provider number.

43. Based on the clear and convincing evidenc e presented

at hearing, the undersigned finds that Dr. Gonzalez is

rehabilitated from the two disqualifying criminal offenses in

2003 and 2007, and that he presents no danger if approved to re -

enroll as a Medicaid p rovider and issued a Medicaid provider

nu mber. 3/

CONCLUSIONS OF LAW

44. 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.

45. For the pu rpose of screening to participate in the

Medicaid program, i ndividuals, su ch as Dr. Gonzal ez, who are

seeking to be a Medicaid provider and obtain a Medicaid p rovider

number, are required to u ndergo background screening.

§ 435.04(4), Fla. Stat.

46. The purpose of the background screening is to:

[E]nsure that a person subject to screening

under this section has not been arrested for

and is not awaiting final disposition of;

has not been found guilty of, regardless of

adjudication, or entered a plea of nolo

contendere or guilty to; and has not been

adjudicated del inquent and the record sealed

or expunged for, any of the following

offenses:

(a) Violation of a federal law or a law in

any state which creates a criminal offense

relating to:

1. The delivery of any goods or services

under Medicaid or Medicare or an y other

public or private health care or health

insurance program, including the performance

of management or administrative services

relating to the delivery of goods or

services under any such program;

* * *

4. Fraud, theft, embezzlement, bre ach of

fiduciary responsibility, or other financial

misconduct;

5. Moral turpitude, if punishable by

imprisonment of a year or more; . . .

§ 435.04(4)(a)1., 4., and 5., Fla. Stat. (2018). (emphasis

added).

47. Dr. Gonzalez ' s initial contention is th at the

October 14, 2003, criminal offense of possession of a

counterfeit driver ' s license, in violation of section

322.21 2(1)(a) , and the June 13, 2007, criminal offense of

unlicensed practice of health care, in violation of

section 456.06 5(2)(d) , are not disqualifying criminal offenses.

Because they are not disqualifying offenses, Dr. Gonzalez

contends that he does not even need to apply for an exemption.

48. The question of whether these two offenses are

disqualifying turns on a question of law and stat utory

interpretation. The undersigned ' s analysis must begin with the

question of whether section 435.04(4)(a)1., 4., and 5 . , enacted

by the Florida Legislature effective July 1, 2018, is clear and

unambiguous. As recognized by the First District Court of

Appeal in Levey v. Detzner , 146 So. 3d 1224, 1225 (Fla. 1st DCA

2014):

Legislative intent is the polestar that

guides a court ' s interpretation of a

statute. A court must endeavor to construe

a statut e to effectuate the Legislature ' s

intent. In discerni ng legislative intent, a

court must look to the actual language used

in the statute. When a statute is clear and

unambiguous, a court will not look behind

the statute ' s plain language for legislative

intent or resort to rules of statutory

construction to ascertain intent. It is not

the prerogative of a court to construe an

unambiguous statute differently from the

plain language of the words employed, nor is

the wisdom of the statute within the ambit

of the court ' s authority.

Levey , 146 So. 3d at 1225 . (citations omitted).

49. Section 435.04(4)(a)1., 4., and 5 . is clear and

unambiguous. The underlying statutes giving rise to the

purported disqualifying offenses, section s 322.212(1)(a)

and 456.065(2)(d), must, p ursuant to section 435.04(4)(a) :

[C reate] a criminal offense relating to:

1. The delivery of any goods or services

under Medicaid or Medicare or any other

public or private health care or health

insurance program, including the performance

of management or administrative services

relatin g to the delivery of goods or

services under any such program

* * *

4. Fraud, theft, embezzlement, breach of

fiduciary responsibility, or other financial

misconduct;

5. Moral turpitude, if punishable by

imprisonment of a year or more; . . .

50. Sections 322.212(1)(a) and 456.065(2)(d) do not create

a criminal offense relating to the delivery of any goods or

services under Medicaid or Medicare or any other public or

private health care or health insurance program, including the

performan ce of management or administrative services under any

such program. Nor do sections 3 22.212(1)(a) and 456.065(2)(d)

create a criminal offense relating to fraud, theft,

embezzlement, breach of fiduciary responsibility, other

financial misconduct, or moral turpitude. Accordingly, the

October 14, 2003, criminal offense of possession of a

counterfeit driver ' s license, in violation of section

322.21 2(1)(a) , and the June 13, 2007, criminal offense of

unlicensed practice of healt h care, in violation of

section 4 56.06 5(2)(d) , are not disqualifying criminal offenses.

51. In its proposed recommended order, AHCA ignores the

plain and unambiguous language in section 435.04(4)(a) requiring

that the underlying law create a criminal offense relating to

the delivery of any goods or services under Medicaid or Medicare

or any other public or private health care insurance program, or

create a criminal offense relating to fraud, theft,

embezzlement, breach of fiduciary responsibility, other

financial misconduct, or moral turpitude.

52. Rather, AHCA contends , on page 20 of its proposed

recommended order , that section 435.04(4)(a) simply disallows

employment as a Medicaid provider for a guilty plea for a

criminal offense relating to the delivery of goods or services

unde r any public or private health care or health insurance

program, or for a guilty plea relating to fraud, theft,

embezzlement, breach of fiduciary responsibility, other

financial misconduct, or moral turpitude.

53. Had the Legislature not intended to re quire that the

underlying law create a criminal offense relating to the

delivery of goods or services under any public or private health

care or health insurance program, or create a criminal offense

relating to fraud, theft, embezzlement, breach of fiduci ary

responsibility, other financial misconduct, or moral turpitude,

it would have said so. How ever, the Legislature chose to use a

specific phrase requiring that the underlying law create a

criminal offen se. Courts must presume that a L egislature says

in a statute what it means and means what it says. Jefferson v.

State , 264 So. 3d 1019, 1024 (Fla. 2d DCA 2018). Moreover , a

statutory provision will not be construed in such a way that it

renders meaningless any other statutory provision. Fla. Virtual

Sc h. v. K12, Inc. , 148 So. 3d 97, 101 - 104 (Fla. 2014). To

accept AHCA ' s interpretation ignores the plain and unambiguous

phrase requiring th at the underlying law create a criminal

offense and would render this language meaningless. 4/

54. Even if the October 14, 2003, criminal offense of

possession of a counterfeit driver ' s license, in violation of

section 322.21 2(1)(a) , and the June 13, 2007, criminal offense

of unlicensed practice of healt h care, in violation of

section 456.06 5(2)(d) , are disqualify ing criminal offen ses,

individuals who have disqualifyi ng offenses may request, as

Dr. Gonzlez has done here, an exemption from disqualification

from the head of the appropriate agency, which in this case is

the secretary of AHCA. § 435.07(1), Fla. Stat.

55 . Turning to the issue of rehabilitation from a

disqualifying criminal offense, pursuant to section

435.07(1)(a)1., the agency head may grant to any person

otherwise disq ualified from being a Medicaid p rovider 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 e ligible for an exemption, Dr. Gonzalez must

demonstrate 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 S o. 3d 1127, 1131 (Fla. 1st DCA

2013)( " the ultimate 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 H ealth and R ehab .

S ervs . , 522 So. 2d 956, 958 (Fla. 1st DCA 1988). Dr. Gonzalez

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 whi ch 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 p resent a danger if

[Medicaid provider status] is allowed.

§ 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, th e 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 established. 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 el igible for an exemption, not

entitled to one. 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 act ion taken,

then the action is not unreasonable, 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 construed 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. Gonzalez met his heavy bu rden in this de novo chapter 120

proceeding of presenting clear and convincing evidence of

rehabilitation, in large part based on the compelling and

heartfelt testimony of Dr. Gonzalez and his four witness es at

the final hearing. At hearing, the undersign ed had the distinct

opportunity to observe the demeanor and credibility of

Dr. Gonzalez and his four witnesses. AHCA did not have the

benefit of this testimony when it formulated its proposed action

to deny Dr. Gonzalez ' s exemption request.

61 . Co nsideration of the compelling testimonial evidence

presented at the final hearing, which was not available to AHCA

at the time it proposed to deny Dr. Gonzalez ' s exemption

request, leads the undersigned to conclude that it would be an

abuse of discretion t o deny the exemption, and that AHCA should

exercise its discretion in favor of granting Dr. Gonzalez ' s

exemption from disqualification. 5 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order granting Dr. Gonzalez ' s

renewal application as a Medicaid provider because of a lack of

disqualifying criminal offenses or, in the alternative, an

exemption from disqualification as a Medicaid provider.

DO NE AND ENTERED this 5th day of August , 2019 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 5th day of August , 2019 .

ENDNOTE S

1/ Dr. Gonzalez previously underwent a background screening in

201 3 to be a Medicaid provider. On June 14, 2013, AHCA mailed a

letter to Dr. Gonzalez indicating that the agency had received

and reviewed the criminal history results from a background

screening he submitted as part of the process to become a

Medicaid prov ider. The letter indicat ed that during the review,

the agency noted an offense " Felony Practice Health Care w/o

License, " that disqualified him from being a Medicaid provider

in accordance with sections 435.04 and 409.907 , Florida

Statutes . Dr. Gonzalez was denied an exemption at that time

pursuant to section 435.07 because three years had not elapsed

since he had " completed probation or the sanction(s) imposed

for " the specific disqualify ing offense. Nevertheless,

Dr. Gonzalez was granted a Medicaid pro vider number in 2013.

According to Mr. Gaddis, operations and management consultant

m anager for AHCA, the granting of this Medicaid provider number

was a mistake.

On July 18, 2018, Dr. Gonzalez requested an exemption from

disqualification and submit ted a Background Screening

Application for Exemption that included documents such as

reference letters, additional documentation regarding his

criminal history, and police reports. On October 1, 2018, AHCA

mailed a letter to Dr. Gonzalez, indicating that the agency had

received and reviewed the criminal history results from a

background screening he submitted as part of the process to be a

Medicaid provider. The letter indicated that during the review,

the agency noted an offense that disqualified him fro m being a

Medicaid provider in accordance with sections 435.04 and

409.907. On October 3, 2018, AHCA conducted a teleconference

with Dr. Gonzalez regarding his request for exemption from

disqualification.

2/ Petitioner was previously arrested on Februar y 26, 2003, in

Florida for three counts of vi olating section 817.234, Florida

Statutes ( fa lse/fraudulent insurance claims) ; three counts of

violating s ection 812.014 (grand theft, third degree) ; and three

counts of vi olating section 458.327 (1)(a) , Florida Statutes

( practi cing medicine without a license) . He was charged with

three counts o f violating section 817.234 ( fa lse/fraudulent

insurance claims) ; one count of violating section 812.014 (grand

theft, third degree) ; and one count of viol ating

section 458 .327(1)(a ) ( practi cing medicine without a license) .

Petitioner pled " not guilty " to all charges. The charges were

" nolle prossed " after completion of a pretrial diversion

program.

Petitioner was also arrested on May 9, 2003, in Florida for

four coun ts of v iolating section 817.234(1) ( false/fraudulent

insurance claims) ; one count o f violating section 812.014 (grand

theft, second degree) ; and 37 counts of viol ating section

45 8.327 (1)(a) ( practi cing medicine without a license) . He was

charged with four c ounts of violating section 817.234

( fa lse/fraudulent insurance claims) ; one count o f violating

section 812.014 (grand theft, second degree) ; one count of

viol ating se ction 458.327 (1)(a) ( practi cing medicine without a

license) ; and three counts of violating section 812.014 (grand

theft, third degree) . Petitioner pled " not guilty " to all

charges. The charges were " nolle prossed " after completion of a

pretrial diversion program.

3/ In an effort to show a lack of rehabilitation, AHCA relies on

certain commen ts made by Dr. Gonzalez during an October 19,

2018, telephone conference as part of the application for

exemption process. Having listened to the recording of the

telephone conference and al so observed the demeanor of

Dr. Gonzalez and his witnesses at the final hearing, the

undersigned is unpersuaded by AHCA ' s argument that

Dr. Gonzalez ' s comments during the telephon i c conference

demonstrate a lack of rehabilitation.

AHCA further relies on Dr. Gonzalez ' s answers of " no " to a

question regarding his prior criminal history that was included

within two 2018 provider enrollment online application

submissions. Again, the undersigned is unpersuaded by AHCA ' s

argument. The signatures of Dr. Gonzalez on these applications

are typed because the applications were generated through a web

portal and filed online. They were prepared by Mary Lugo, an

individual hired by Dr. Gonzalez ' s wife. At hearing,

Dr. Gonzalez credibly and persuasively testified that he never

saw these documents before the final hearing on March 18, 2019;

that he never instructed anyone to answer the question about the

criminal history incorrectly; and that it would not have made

any sense for him to answer the question " no . " Notably, these

applications differ from Dr. Gonzalez ' s prior sub mission in

2013, which contained his handwritten signature and answer of

" yes " to a question regarding his prior criminal history.

Moreover, in 2013, Dr. Gonzalez fully disclosed his criminal

history to AHCA, and AHCA was fully aware of Dr. Gonzalez ' s

cri minal history during the process of his 2018 application for

an exemption from disqualification.

4/ Although section 435.04(4) is clear and unambiguous , and

resort to legislative history is not warranted, the intent of

the bill was to " [provide ] more spe cificity as to wh ich offenses

are disqualifying." Fla. S. Comm. on Rules, CS for CS for SB

622 (2018), Staff Analysis 1 7 (March 1, 2018)(available at

https://www.myfloridahouse.gov/Sections/Documents/loaddoc

.aspx?FileName=2018s00622.rc.DOCX&DocumentType= Analysis&Bill

Number=0622&Session=2018 ).

5 / Even a ssuming that the October 14, 2003, criminal offense of

possession of a counterfeit driver ' s license is a d isqualifying

felony offense, and that the 2007 criminal offense is not a

disqualifying felony, the 2007 criminal offense could still be

considered by AHCA as p art of its deliberations of

Dr. Gonzalez ' s rehabilitation pursuant to section 435.07(3)(b).

However, Dr. Gonzalez ' s February 26, 2003 , and May 9, 2003,

arrests cannot be considered by AHCA becau se they are not

disqualifying offenses; the charges were " nolle prossed " and, in

any event, they occurred before either of the purported two

disqualifying felony offenses of October 4, 2003 , and June 13,

2007. Rivera v. Ag . for Pers. with Disab . , Case No. 15 - 5039EXE ,

2015 Fla. Div. Adm. Hear. LEXIS 426, *14 (Fla. DOAH Nov. 10,

2015).

COPIES FURNISHED:

Susan Sapoznikoff, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Barry M. Wax, Esq uire

Law Offices of Barry M. Wax

701 Brickell Avenue , Suite 1550

Miami, Florida 33131

(eServed)

Kimberly S. Murray, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308 - 5407

(eServed)

Richard J. Shoop, Agency Clerk

A gency for H ealth C are A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

A gency for H ealth C are A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

A gency for H ealth C are A dministration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Kim Kellum, Esquire

A gency for H ealth C are A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eSer ved)

Thomas M. Hoeler, Esquire

A gency for H ealth C are A dministration

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 th e 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.