20-001580 Agency For Health Care Administration vs. Ronald M. Marini, D.M.D., P.A. Status: Closed Recommended Order on Thursday, July 16, 2020.

Summary: AHCA proved by clear and convincing evidence that Respondent?s participation in the Medicaid program must be terminated for failure to reimburse an overpayment or pay a fine as determined by final order.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Petitioner ,

Case No. 20 - 158 0

vs.

R ONALD M. M ARINI , D.M.D., P.A. ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before J. Bruce Culpepper,

Administrative Law Judge of the Division of Administrative Hearings,

pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019), 1 on

May 29, 2020, by video teleconference at sites in Tallahassee and Altamonte

Springs, Florida.

A PPEARANCES

For Petitioner: Kimberly Murray, Esquire

Agency for Health Care Administration

2727 Mahan Drive, M ail Stop 3

Tallahassee, Florida 32308

For Respondent: Ronald Marini, D.M.D, P.A. , pro se

2921 South Orlando Drive, Suite 146

Sanford, Florida 32773

1 Al l statutory references are to Florida Statutes (2019), unless otherwise noted.

S TAT EMENT OF T HE I SSUE

Whether the Agency for Health Care Administration is authorized to

terminate the participation of Respondent, Ronald M. Marini, D.M.D., P.A.,

in the Medicaid program.

P RELIMINARY S TATEMENT

On January 29, 2020, Petitioner, Agency for Hea lth Care Administration

( Ñ AHCA Ò ) , served Respondent, Ronald M. Marini, D.M.D., P.A., with notice

that it intended to terminate Respondent Ô s participation in the Medicaid

program in accordance with section 409.913(30) , Florida Statutes, and

Florida Administ rative Code Rule 59G - 9.070(7)(s).

This termination action is based on Respondent Ô s failure to comply with

an AHCA Final Order entered on October 27, 2017, which requires

Respondent to reimburse certain Medicaid overpayments, as well as pay an

administrati ve fine. See Ag . for Health Care Admin . v. Ronald M. Marini,

D.M.D., P.A. , Case No. 16 - 5641MPI (Fla. DOAH Aug . 29, 2017; Fla. AHCA

Oct . 27, 2017).

Dr. Ronald M. Marini, on behalf of Respondent, challenged AHCA Ô s

intended action by timely filing an Amende d Petition for Formal Hearing on

March 2, 2020. On March 26, 2020, AHCA referred this matter to the

Division of Administrative Hearings ( Ñ DOAH Ò ) for assignment of an

Administrative Law Judge ( Ñ ALJ Ò ) to conduct a chapter 120 evidentiary

hearing.

The fina l hearing was held on May 29, 2020. At the final hearing, AHCA

called Shelby Sauls and Katrina Derico - Harris as witnesses. AHCA Ô s

Exhibits 1 through 3 and 6 through 10 were admitted into evidence.

Dr. Marini testified on behalf of Respondent. Respondent Ô s Exhibit 1 was

admitted into evidence.

A one - volume Transcript of the final hearing was filed with DOAH on

June 10, 2020. At the close of the hearing, the parties were advised of a ten -

day timeframe following DOAH Ô s receipt of the hearing transcript to fil e post -

hearing submittals. Both parties timely submitted post - hearing submittals ,

which were duly considered in preparing this Recommended Order.

F INDINGS OF F ACT

1. AHCA is designated as the single state agency authorized to make

payments for medical ass istance and related services under Title XIX of the

Social Security Act, otherwise known as the Medicaid program. See

§§ 409.902(1) and 409.901(2) and (14), Fla. Stat. AHCA is responsible for

administering and overseeing the Medicaid program in the State o f Florida.

See § 409.913, Fla. Stat.

2. AHCA Ô s Bureau of Medicaid Program Integrity ( Ñ MPI Ò ) is the unit

within AHCA that oversees the activities of Florida Medicaid providers and

recipients. MPI ensures that providers abide by Medicaid laws, policies, and

rules. MPI is responsible for conducting audits, investigations, and reviews to

determine possible fraud, abuse, overpayment, or neglect in the Medicaid

program. See §409.913, Fla. Stat.

3. Dr. Ronald M. Marini established his dental practice, Ronald M.

Ma rini, DMD, PA (Respondent) , in 2002. Dr. Marini Ô s practice focuses

primarily on the treatment of children who have dental coverage through

Medicaid.

4. Respondent holds an active Medicaid provider agreement with AHCA ,

and is assigned Medicaid Provider No. 076031500. At all times relevant to

this proceeding, Respondent was an enrolled Florida Medicaid provider

authorized to provide dental care to Medicaid beneficiaries and receive

reimbursement for covered services rendered to Medicaid recipients.

5. A Med icaid provider agreement is a voluntary contract between AHCA

and the provider. As an enrolled Medicaid provider, Respondent is subject to

the duly - enacted federal and state statutes, regulations, rules, policy

guidelines, and Medicaid handbooks incorporat ed by reference into rule. See

§ 409.907, Fla. Stat.

6. For services rendered to Medicaid recipients, AHCA pays Medicaid

providers under an honor system. AHCA is authorized to monitor the

activities of Medicaid providers and to recover Ñ overpayments. Ò See

§§ 409.913 and 409.9131(5), Fla. Stat. An Ñ overpayment Ò includes Ñ any

amount that is not authorized to be paid by the Medicaid program , whether

paid as a result of inaccurate or improper cost reporting, improper claiming,

unacceptable practices, fraud, abu se, or mistake. Ò § 409.913(1)(e), Fla. Stat.

AHCA is also empowered to impose sanctions against offending Medicaid

providers. § 409.9131, Fla. Stat.

7. The dispute between AHCA and Respondent originated in 2014 when

AHCA Ô s MPI unit initiated a review of Re spondent Ô s claims for Medicaid

reimbursement for the period of March 1, 2010, through August 31, 2012.

Following the MPI unit review, AHCA issued a Final Audit Report on

September 19, 2014, informing Dr. Marini that Respondent was overpaid for

claims not c overed by Medicaid in the amount of $590,008.15. In accordance

with section 409.913 and rule 59G - 9.070, AHCA notified Respondent that it

intended to collect the full amount of the overpayment, plus an

administrative fine. Respondent responded by requesting a formal

administrative hearing to contest AHCA Ô s action.

8. Respondent Ô s overpayment proceeding was eventually heard in DOAH

as Agency for Health Care Administration v. Ronald M. Marini, D.M.D., P.A. ,

Case No. 16 - 5641MPI (the Ñ MPI Hearing Ò ). The matter w as assigned to

Administrative Law Judge Linzie F. Bogan who conducted a formal

administrative hearing on June 28 and 29, 2017.

9. During the MPI Hearing, AHCA presented the testimony (via

deposition) of Mark Kuhl, D.M.D. AHCA requested Judge Bogan accept

D r. Kuhl as an expert in the area of rendering dental care and dental medical

necessity with respect to Medicaid overpayment. AHCA also offered Dr. Kuhl

as a Ñ peer reviewer Ò pursuant to section 409.9131.

10. On August 29, 2017, Judge Bogan issued a Recommen ded Order in the

MPI Hearing siding with AHCA. Judge Bogan specifically concluded:

As determined in the Findings of Facts, [AHCA]

met its burden of proof and established for those

claims identified herein that Respondent was paid

for claims that failed to comply with the laws,

rules, and regulations governing Medicaid

providers.

Marini, Case No. 16 - 5641MPI, RO at 38.

Thereafter, Judge Bogan recommended that AHCA enter a final order that:

1. Revises the Final Audit Report consistent with

the Findings of Fa ct and Conclusions of Law set

forth herein;

2. Recalculates the total overpayment consistent

with the Findings of Fact and Conclusions of Law

set forth herein;

3. Requires Respondent to pay interest at the

statutorily mandated rate on the recalculated

ov erpayment; and

4. Requires Respondent to pay a fine in the amount

of 20 percent of the recalculated overpayment.

Marini, Case No. 16 - 5641MPI, RO at 39.

11. In reaching his decision, Judge Bogan specif ically noted that he

accepted Dr. Kuhl as an expert Ñ i n the areas of rendering dental care and

dental medical necessity with respect to Medicaid overpayment cases. Ò Judge

Bogan further accepted Dr. Kuhl Ñ as a peer reviewer pursuant to section

409.9131, Florida Statutes. Ò Judge Bogan also noted that Dr. Kuhl o perates a

general dentistry practice where he treats pediatric patients. However, he is

not board - certified in any specialty. Marini, Case No. 16 - 5641MPI, RO at 8.

12. AHCA issued its Final Order on October 27, 2017. In its Final Order,

AHCA adopted Judge Bogan Ô s findings of fact as set forth in his

Recommended Order without modification. AHCA also adopted Judge

Bogan Ô s conclusions of law without modification. Marini, Case

No. 16 - 5641MPI, FO at 16.

13. Per Judge Bogan Ô s recommendations, AHCA calculated tha t

Respondent must repay an overpayment of $424,031.64. AHCA further

imposed a fine on Respondent of $84,806.33. Marini, Case No. 16 - 5641MPI,

FO at 16. 2

14. Dr. Marini appealed AHCA Ô s Final Order to the Fifth District Court of

Appeal on November 27, 2017. O n April 16, 2019, the Fifth District affirmed

the Final Order in a per curiam affirmed decision. 3

15. On May 15, 2019, Dr. Marini appealed the Fifth District Ô s decision to

the Florida Supreme Court. On May 23, 2019, the Supreme Court dismissed

Dr. Marini Ô s appeal stating that the Court:

lacks jurisdiction to review an unelaborated

decision from a district court of appeal that is

issued without opinion or explanation or that

merely cites to an authority that is not a case

pending review in, or reversed or q uashed by, this

Court. [ 4 ]

16. As of the date of the final hearing, Respondent has not paid to AHCA

the full amount of either the overpayment or the fine ordered by the Final

2 Pursuant to section 409.913(25 ) (c), Respondent was also responsible to pay interest on the

overpayment amount of ten percent per year from the date of the F inal O rder. Marini , Case

No. 16 - 5641MPI, FO at 16.

3 Ronald M. Marini, D.M.D., P.A. v. Ag . for Health Care Admin . , 269 So. 3d 558 (5th DCA

2019), review dismissed sub nom. Ronald M. Marini, D.M.D . , P.A. v. Ag . for Health Care

Admin. , No. SC19 - 843, 2019 WL 2238725 (Fla. May 23, 2019).

4 Ronald M. Marini, D.M.D . , P.A. v. Ag . for Health Care Admin. , No. SC19 - 843, 2019 WL

2238725 (Fla. May 23, 2019) .

Order (a total of $508,837.97). Neither has Respondent entered into an

agreement with AHCA to repay the overpayment.

17. Based on Respondent Ô s failure to reimburse the overpayment or enter

into a repayment agreement, on or about January 29, 2020, AHCA initiated

this action to terminate Respondent Ô s participation as a provider in the

M edicaid program. AHCA pursues this action based on section 409.913(30) ,

which directs that AHCA :

[S]hall terminate a provider Ô s participation in the

Medicaid program if the provider fails to reimburse

an overpayment or pay an agency - imposed fine that

has b een determined by final order, not subject to

further appeal, within 30 days after the date of the

final order, unless the provider and the agency

have entered into a repayment agreement.

See also Fla. Admin. Code R. 59G - 9.070(7)(s).

18. In support of its case, AHCA called Shelby Sauls, a Management

Review Specialist for AHCA Ô s MPI unit. As part of her responsibilities,

Ms. Sauls supervises AHCA Ô s issuance of suspension and termination notices

for Medicaid provider agreements.

19. During the hearing, Ms. S auls reviewed AHCA Ô s case financial history

notes recording all Respondent Ô s Medicaid payment activity following the

MPI Hearing in 2017. Ms. Sauls testified that Respondent still owes over

$500,000 of the overpayment and fine ordered in AHCA Ô s Final Order .

20. Ms. Sauls further relayed that AHCA and Dr. Marini have not entered

into a repayment agreement to address the amount Respondent owes to

AHCA per the 2017 Final Order.

21. Katrina Derico - Harris also testified for AHCA. Ms. Derico - Harris is an

Account ing Services Supervisor II and supervises the Medicaid Accounts

Receivable Unit section of AHCA Ô s Bureau of Financial Services, which

handles the majority of Medicaid overpayment collections.

22. Ms. Derico - Harris stated that, as of the date of the final h earing,

AHCA has received only one payment from Respondent in the amount of

$24.49 on March 5, 2020. Ms. Derico - Harris declared that Respondent owes a

current balance of $468,512.54 to AHCA to satisfy the full amount of the

overpayment. 5

23. Ms. Derico - Ha rris also confirmed that Respondent and AHCA have

not entered into an agreement to repay the overpayment.

24. Dr. Marini, in challenging AHCA Ô s decision to terminate Respondent

from the Medicaid program, vigorously asserts that the calculation of an

overp ayment of $424.031.64 in AHCA Ô s 2017 Final Order was Ñ spoiled fruit Ò

from the beginning. Dr. Marini Ô s predominant argument is his strenuous

objection to AHCA Ô s presentation of, and the presiding ALJ Ô s reliance upon,

Dr. Kuhl Ô s testimony at the MPI Hearing . Dr. Marini asserts that the

$424,031.64 overpayment amount was based on the testimony of an

unqualified dental expert who used Ñ an outrageous formula that turned a

supposed overpayment of $3,500 into $590,000. Ò

25. To support his position, Dr. Marini po ints to the fact that when

Dr. Kuhl rendered his opinion, he was not a Medicaid Dental Provider, he

never worked with a Medicaid Dental Provider, and he was not well versed in

the use of the Florida Medicaid Dental Services Coverage and Limitations

Handboo k. Further, Dr. Marini contends that Dr. Kuhl should never have

been considered an expert in Medicaid dentistry or children Ô s dentistry due to

the fact that his exposure to children Ô s dentistry was limited to one to two

children per week as compared to the 60 - 80 children seen per day in

Dr. Marini Ô s practice. Finally, Dr. Marini proclaims that Dr. Kuhl Ô s

Ñ knowledge and use of dental materials was opinion bias and against the

acceptable standards presented by the American Dental Association and the

manufactu rers of dental materials. Ò

5 Ms. Derico - Harris added that this amount does not include interest from February 10,

2020, to present, for which Dr. Marini is also obligated to pay.

26. Consequently, Dr. Marini argues that Dr. Kuhl Ô s testimony could not

support the finding that Respondent was overpaid by Medicaid, and the ALJ

should not have accepted Dr. Kuhl as an expert to testify regarding the

validity o f Medicaid claims for dental services. Therefore, Dr. Marini

emphatically declares that the Final Order issued in 2017 was improperly

decided and invalid.

27. In requesting an administrative hearing in the present matter,

Dr. Marini hopes to have a Ñ prop erly vetted and qualified dental expert Ò

review his Medicaid claims. Dr. Marini maintains that Respondent owes

nothing more to AHCA than $24.49, which is based on two errors he found in

Respondent Ô s Medicaid claims during the audit period. Dr. Marini volun tarily

paid the $24.49 to AHCA on March 5, 2020, which he considers the full

amount of the overpayment.

28. Dr. Marini admits that Respondent has not reimbursed AHCA for any

amount over the $24.49. Neither has Respondent entered into a repayment

agreement with AHCA.

29. At the final hearing, Dr. Marini testified that Dr. Kuhl has never been

challenged or properly vetted as an expert. However, contrary to Dr. Marini Ô s

assertions, the record in the MPI Hearing reveals that Respondent had a full

and fair oppo rtunity to attack Dr. Kuhl Ô s competency to testify with respect to

Medicaid overpayment claims. Indeed, Dr. Marini (through his legal counsel)

frequently and purposefully questioned Dr. Kuhl Ô s expertise, knowledge, and

training. 6 More to the point, as furt her discussed below, Respondent cannot

6 For example, before the final hearing, Respondent and AHCA participated in two

depositions of Dr. Kuhl. Prior to Dr. KuhlÔs last deposition, Respondent filed an Objection to

Notice of Taking Deposition in Lieu of Live Testimony a nd Motion in Limine to Exclude

Testimony of Mark Kuhl, D.M.D. Following the deposition, Respondent filed another Motion

in Limine to Strike Testimony of [AHCAÔs] Expert Witness, Mark Kuhl, D.M.D., and

Supporting Memorandum of Law. Finally, nine days after the final hearing, Respondent filed

a Motion in Opposition to [AHCAÔs] Tendering of Mark A. Kuhl, D.M.D., as an Expert in

Rendering Dental Care and Dental Medical Necessity With Respect to Medicaid

Overpayment Cases. In its motions, Respondent repeatedly u rged the ALJ to exclude

Dr. KuhlÔs testimony. Respondent argued that Dr. Kuhl did not specialize in pediatric

dentistry, therefore Dr. Kuhl did not possess the knowledge, training, or expertise to testify

relitigate these issues. AHCA Ô s Final Order is final and is now beyond appeal.

Respondent Ô s recourse to raise issues regarding AHCAÔs overpayment

determination was by appeal, which he purs u ed and ultimately lost.

30 . Based on the competent substantial evidence presented at the final

hearing, the clear and convincing evidence in the record establishes that

Respondent failed to reimburse AHCA for a Medicaid overpayment or pay a

fine AHCA imposed by final order. The evide nce further establishes that

Respondent has not entered into an agreement with AHCA to repay the

overpayment or the fine. Accordingly, AHCA met its burden of proving that

section 409.913(30) authorizes the termination of Respondent Ô s participation

in the M edicaid program.

C ONCLUSIONS OF L AW

31 . The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding pursuant to sections 120.569,

120.57(1), and 409.913(31).

32 . AHCA brings this action to terminate Re spondent Ô s participation in

the Medicaid program alleging that Respondent failed to reimburse an

regarding the provision of dental services to Medic aid patients. Respondent further asserted

that Dr. Kuhl did not qualify as a ÑpeerÒ under section 409.9131(2)(c), Florida Statutes

(2013). Therefore, AHCAÔs Ñuse of Dr. Kuhl as an expert witness to testify in support of his

peer review,Ò violated Florida l aw.

Judge Bogan denied every Respondent motion regarding Dr. Kuhl and allowed AHCA to

present Dr. KuhlÔs deposition testimony at the final hearing. In addition, approximately two

weeks following the final hearing, Judge Bogan issued a written ruling en titled Order

Recognizing Mark A. Kuhl as an Expert and Peer Reviewer, which specifically decreed:

1. Dr. Kuhl is accepted as an expert in rendering dental care

and dental medical necessity with respect to Medicaid

overpayment cases. Accordingly, as to thi s issue,

RespondentÔs objection to PetitionerÔs tender is OVERRULED.

2. Dr. Kuhl, as previously determined by the undersigned, is

RespondentÔs peer within the meaning of section 409.9131.

Accordingly, as to this issue, RespondentÔs objection is

OVERRULED.

overpayment of $424,031.64 for medical services not covered by Medicaid or

pay an agency - imposed fine of $84,806.33.

33 . The Medicaid program is the federal - s tate medical assistance program

authorized by Title XIX of the Federal Social Security Act, pursuant to which

the State of Florida provides medical goods and services to eligible recipients.

§ 409.901(16), Fla. Stat.

34 . Pursuant to section 409.902(1), AHC A shall make Medicaid payments

only for services included in the Medicaid program. Payments shall only be

made on behalf of eligible individuals and shall be made only to qualified

providers in accordance with federal requirements for Title XIX of the Soci al

Security Act and provisions of state law.

35 . AHCA oversees the activities of Medicaid providers to ensure that

fraudulent and abusive behavior occurs to the minimum extent possible.

§ 409.913, Fla. Stat. Towards this end, AHCA is authorized to recover

overpayments that may have occurred for goods or services paid under the

Medicaid program. §§ 409.913(11), (12)(a), (16)(j), and (31), Fla. Stat.

3 6 . If an overpayment has been determined, section 409.913(30) states

that AHCA:

[S]hall terminate a provide r Ô s participation in the

Medicaid program if the provider fails to reimburse

an overpayment or pay an agency - imposed fine that

has been determined by final order, not subject to

further appeal, within 30 days after the date of the

final order, unless the p rovider and the agency

have entered into a repayment agreement.

Rule 59G - 9.070(7) similarly provides:

Sanctions. In addition to the recoupment of the

overpayment, if any, the Agency will impose

sanctions as outlined in this subsection. Except

when the Sec retary of the Agency determines not to

impose a sanction, pursuant to section

409.913(16)(j), F.S., sanctions shall be imposed as

follows:

* * *

(s) For non - payment or partial payment where

monies are owed to the Agency, and failure to enter

into a repayment agreement, in accordance with

sections 409.913(25)(c) and 409.913(30), F.S., the

Agency shall impose the sanction of termination.

37 . This action to terminate Respondent Ô s participation in the Medicaid

program is penal in nature. Accordingly, AHCA bears the burden of proof to

demonstrate the grounds for doing so by clear and convincing evidence. Dep Ô t

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

So. 2d 932, 935 (Fla. 1996); see also Fla. Dep Ô t of Child. & Fams. v. Davis

Fam. Day Care Home , 160 So. 3d 854, 856 (Fla. 2015)( Ñ an agency must prove

its reasons for revoking a professional license by clear and convincing

evidence because such a proceeding is penal in nature and implicates

significant property rights. Ò ) .

38 . Clear and convincing evidence is a heightened standard that Ñ requires

more proof than a Ó preponderance of the evidence Ô but less than Ó beyond and

to the exclusion of a reasonable doubt. ÔÒ Clear and convincing evidence is

defined as an intermediate burd en of proof that:

[R]equires that the evidence must be found to be

credible; the facts to which the witnesses testify

must be distinctly remembered; the testimony must

be precise and explicit and the witnesses must be

lacking in confusion as to the facts i n 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.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 - 73 (Fla.

2014)(quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

39 . As stated above, the clear and convincing evidence in the record

establishes that Respondent failed to reimburse AHCA for a Medicaid

overpayment in the amount of $4 24 ,031.64 or pay a fine of $84, 8 06.33. The

evidence further shows that Respondent has not entered into an agreement

with AHCA to repay the overpayment or the fine. Accordingly, section

409.913(30) authorizes AHCA to terminate Respondent Ô s parti cipation in the

Medicaid program.

40 . Respondent Ô s defense in this matter rests on his assertion that the

overpayment resulting from the 2017 MPI Hearing was derived from flawed

and unsupported evidence. However, a well - established premise of judicial

and quasi - judicial (administrative) proceedings is that decisions become final

and conclusive at the end of litigation. See Felder v. State of Fla., Dep Ô t of

Mgmt. Servs., Div. of Ret. , 993 So. 2d 1031, 1034 - 35 (Fla. 1st DCA 2008). The

issue of Respondent Ô s o bligation to pay an overpayment, as well as the

amount of the overpayment, the imposition of the administrative fine, and

the credibility and persuasiveness given to the evidence supporting the

overpayment (Dr. Kuhl Ô s expert testimony) were all litigated a nd decided in

Marini , DOAH Case No. 16 - 5641MPI. RespondentÔs recourse to assert errors

in that decision was by appeal. At this time, Respondent has exhausted all

available appeals. Accordingly, it is not proper for the undersigned to

reconsider whether Res pondent is obligated to reimburse AHCA for the

overpayment. Neither is it appropriate to entertain Dr. Marini Ô s continued

complaint about the weight Judge Bogan gave to Dr. Kuhl Ô s testimony.

41 . Based on the principles of administrative finality, res judi cata, and

collateral estoppel, Respondent may not relitigate in this proceeding the

issues that were previously fully addressed and determined in the MPI

Hearing. Ñ Administrative finality Ò is the policy that there must be a

Ñ terminal point in every proceed ing both administrative and judicial, at

which the parties and the public may rely on a decision as being final and

dispositive of the rights and issues involved therein. Ò Fla. Power Corp. v.

Garcia , 780 So. 2d 34, 44 (Fla. 2001). The doctrine of administr ative finality

is based on the litigants Ô need Ñ to have confidence in the authority of an

administrative order. Ò Felder , 993 So. 2d at 1035.

4 2 . In the field of administrative law, administrative finality is the

counterpart to res judicata. Delray Med. Ct r. v. State Ag. for Health Care

Admin. , 5 So. 3d 26, 29 (Fla. 4th DCA 2009); see also Pumphrey v. Dep Ô t of

Child . & Fams . , 292 So. 3d 1264, 1266 (Fla. 1st DCA 2020)( Ñ The doctrine of

administrative finality is based on principles similar to those supporting res

judicata and collateral estoppel. Ò ) . Under the doctrine of res judicata, a final

judgment or order bars a subsequent suit between the same parties based on

the same issues and cause of action. Felder , 993 So. 2d at 1034. Res judicata

applies both to i ssues actually raised and determined in the first proceeding,

as well as issues that could have been raised and determined in that

proceeding. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co. , 945 So.

2d 1216, 1235 (Fla. 2006).

43 . Similarly, the do ctrine of collateral estoppel bars a party from

litigating in a second action issues that were adjudicated in prior litigation

between the same parties or their privies. The doctrine of collateral estoppel

is applicable to administrative orders and decisio ns. Cook v. State , 921 So. 2d

631, 634 (Fla. 2d DCA 2005)(The doctrine of collateral estoppel Ñ bars

relitigation of the same issues between the same parties in connection with a

different case of action... . The doctrine È is Ó applicable to administrative

proceedings . ÒÓ C iting Deep Lagoon Boat Club, Ltd. v. Sheridan , 784 So. 2d

1140, 1141 n. 4 (Fla. 2d DCA 2001). Collateral estoppel bars subsequent

causes of action when five factors are met: (1) an identical issue must have

been presented in the prior proce eding; (2) the issue must have been a critical

and necessary part of the prior determination; (3) there must have been a full

and fair opportunity to litigate that issue; (4) the parties in the two

proceedings must be identical; and (5) the issue[ ]must ha ve been actually

litigated. Ò Pumphrey , 292 So. 3d at 1266, citing Felder , 993 So. 2d at 1034 Ï 35.

44 . The essential elements of administrative finality, res judicata, and

collateral estoppel are all found in this proceeding. AHCA and Respondent

are the exac t same parties in the 2017 MPI Hearing and the present matter.

During the first administrative hearing, the parties presented identical facts

and issues regarding whether Respondent was overpaid for Medicaid claims

for the period from March 1, 2010, throug h August 31, 2012. Dr. Marini had a

fair and full opportunity to litigate AHCA Ô s allegations. Finally, the

credibility and persuasiveness of Dr. Kuhl Ô s (expert) testimony was integral

and necessary to the ALJ Ô s finding that Respondent received an overpayme nt

from the Medicaid program.

4 5 . Consequently, administrative finality precludes Respondent from

reliti gating in this present matter issues that were fully adjudicated in the

MPI Hearing. The findings of fact and conclusions of law set forth in Judge

Boga n Ô s Recommended Order, and adopted in AHCA Ô s Final Order, are

conclusive and dispositive as to every challenge Dr. Marini raises regarding

the alleged overpayments, including AHCA and Judge Bogan Ô s reliance on

Dr. Kuhl Ô s expert testimony. See Delray Med. C tr. , 5 So. 3d at 29. 7 The

undersigned will not reexamine claims that Respondent presented (or could

have presented) during the MPI Hearing, including AHCA Ô s specific

determination in its Final Order that Respondent is obligated to reimburse

AHCA for an ove rpayment of $424,031.64 and must pay a fine of $84,806.33.

4 6 . Accordingly, the sole issue for consideration in this proceeding is

whether AHCA is authorized to terminate Respondent from the Medicaid

program. Towards this end, section 409.913(30) direct s that AHCA Ñ shall Ò

terminate Respondent Ô s participation in the Medicaid program if it has failed

to reimburse an overpayment or pay an agency - imposed fine that has been

determined by final order (not subject to further appeal), unless he has

entered into a repayment agreement with AHCA.

7 Florida courts Ñ do not apply the doctrine of administrative finality when there has been a

significant change in circumstances or there is a demonstrated public interest. Ò Pumphrey ,

292 So. 3d at 1267. In this matter, however, Respondent did not introdu ce facts showing a

significant change of circumstances regarding his overpayment during the audit period or

demonstrate a public need to have the matter reheard.

47 . The clear and convincing evidence adduced at the final hearing

establishes the following:

a. By Final Order in Marini , Case No. 16 - 5641MPI (AHCA Oct. 27, 2017),

Respondent owes AHCA $424,031.64 for overpayments from M edicaid for the

period of March 1, 2010, through August 31, 2012.

b. Respondent has failed to reimburse AHCA for the overpayment (other

than $24.49).

c. Also b y Final Order, AHCA imposed a fine on Respondent in the

amount of $84,806.33.

d. Respondent has not paid AHCA this fine.

e. The Final Order in Marini is not subject to further appeal.

f. Respondent and AHCA have not entered into an agreement to repay the

overpayment.

48 . Based on the record in this matter, the fact that Respondent owes an

overpaymen t and fine to AHCA, as well as the credibility and reliability of

the underlying evidence supporting it, was conclusively and, with Ñ finality, Ò

established in Marini , Case No. 16 - 5641MPI. Therefore, Respondent may not

continue to contest the money Responde nt owes to AHCA in a subsequent

administrative or judicial forum. Accordingly, section 409.913(30) mandates

that AHCA terminate Respondent Ô s participation in the Medicaid program.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of L aw, it is

RECOMMENDED that AHCA issue a final order terminating Respondent Ô s

participation in the Medicaid program.

In its Proposed Recommended Order, AHCA requests that, as the

prevailing party, it is entitled to recover all costs incurred in this matter

pursuant to section 409.913(23)(a). To the extent that section 409.913(23)(a)

applies, jurisdiction is retained to determine the amount of an award of costs,

if any. Within 30 days after entry of a final order, either party may file a

request for a hearing to determine the amount of appropriate costs. Failure to

request a hearing within 30 days after entry of the final order shall be

deemed to indicate that the issue of costs has been resolved.

D ONE A ND E NTERED this 1 6 th day of July , 2020 , in Tallahassee, Leon

County, Florida.

S

J. B RUCE C ULPEPPER

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 1 6 th day of July , 2020 .

C OPIES F URNISHED :

Ronald Marini, D.M.D, P.A.

2921 South Orlando Drive, Suite 146

Sanford, Florida 32773

Kimberly Murray, Esquire

Agency for Health Care Administration

2 727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Ad ministration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.