20-002884MPI Agency For Health Care Administration vs. Abella Yose Care Services, Inc. Status: Closed Recommended Order on Wednesday, February 3, 2021.

particularity its reasons for rejecting or modifying such conclusion

of law or interpretation of administrative rule and must make a

finding that its substituted conclusion of law or interpretation of

administrative rule is as or more reasonable than that which was

rejected or modified. Rejection or modification of conclusions of

law may not form the basis for rejection or modification of

findings of fact. The agency may not reject or modify the findings

of fact unless the agency first determines from a review of the

entire record, and states with particularity in the order, that the

findings of fact were not based upon competent substantial

evidence or that the proceedings on which the findings were based

did not comply with essential requirements of law ....

§ 120.57(1)(1), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each

exception, but an agency need not rule on an exception that does not clearly identify the disputed

portion of the recommended order by page number or paragraph, that does not identify the legal

basis for the exception, or that does not include appropriate and specific citations to the record."

§ 120.57(1)(k), Fla. Stat. In accordance with these legal standards, the Agency makes the

following rulings on Respondent's exceptions:

In Exception No. 1, Respondent takes exception to the last sentence of Paragraph 54 of

the Recommended Order, arguing it is not supported by competent, substantial evidence.

Respondent is incorrect. The findings of fact in the last sentence of Paragraph 54 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Page 139; Petitioner's Exhibit 8.b. at Bates Pages 401-402. Thus, the Agency cannot

reject or modify them. See § 120.57(1)(!), Fla. Stat.; Heifetz v. Department of Business

Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (holding that an agency "may not reject

the hearing officer's finding [of fact] unless there is no competent, substantial evidence from

which the finding could reasonably be inferred"). Therefore, the Agency denies Exception No.

1.

In Exception No. 2, Respondent takes exception to the last sentence of Paragraph 55 of

the Recommended Order, arguing the ALJ' s finding that there was no indication Ms. Balada

provided direct services to the target population is not based on competent, substantial evidence.

Contrary to Respondent's argument, the findings of fact in Paragraph 55 of the Recommended

Order are based on competent, substantial record evidence. See Transcript, Volume 2, Pages

139-140; Petitioner's Exhibit 8.b. at Bates Page 441. Thus, the Agency is not at liberty to reject

or modifY them. See § 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the

Agency denies Exception No. 2.

In Exception No. 3, Respondent takes exception to Paragraph 58 of the Recommended

Order, arguing the findings of fact in that paragraph are not based on competent, substantial

evidence. Respondent's argument is unfounded. The findings of fact in Paragraph 58 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Pages 144-145; Petitioner's Exhibit 8.b. at Bates Pages 434 and 440. Thus, the

Agency cannot disturb them. See § 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

Therefore, the Agency denies Exception No.3.

In Exception No. 4, Respondent takes exception to Paragraph 59 of the Recommended

Order, arguing that, to the extent the ALJ implies that a provider's qualifYing two-year

experience must be with Medicaid recipients, the findings are not based on competent,

substantial evidence. What a finding of fact may or may not imply does not provide the Agency

with a valid basis to reject or modifY it. Furthermore, the ALI's interpretation of Medicaid law

in Paragraph 59 of the Recommended Order is correct and reasonable. In addition, Respondent

did not take exception to Paragraph 51 of the Recommended Order, where the ALJ found

Respondent was required to maintain and retain documentation

that each rendering provider had met the minimum provider

qualifications of possessmg at least two years' experience

providing direct diagnostic or treatment procedures to an

individual enrolled in Florida Medicaid with mental health

disorders, developmental or intellectual disabilities and to submit

that contemporaneous documentation to the Agency upon request

to audit those records.

Lastly, the findings of fact in Paragraph 59 of the Recommended Order are based on competent,

substantial record evidence. See Transcript, Volume 2, Page 145; Petitioner's Exhibit 8.b. at

Bates Page 461. Thus, the Agency is prohibited from rejecting or modifying them. See §

120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception

No.4.

In Exception No. 5, Respondent takes exception to Paragraph 60 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence. The

findings of fact in Paragraph 60 of the Recommended Order are based on competent, substantial

record evidence. See Petitioner's Exhibit 9.a. at Bates Page 689. Thus, the Agency cannot reject

or modify them. See § 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Furthermore, the

ALJ's findings of fact in Paragraph 60 are based on the ALJ's weighing of the evidence

presented in this matter. The Agency is not permitted to re-weigh that evidence. Heifetz, 475

So. 2d at 1281. Therefore, the Agency denies Exception No.5.

In Exception No. 6, Respondent takes exception to Paragraph 64 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 64 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Page 160. Thus, the Agency cannot reject or modify them. See§ 120.57(1)(1), Fla.

Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No.6.

In Exception No. 7, Respondent takes exception to Paragraph 66 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Based on the Agency's rulings on Respondent's Exception Nos. 1 - 6 supra, which are hereby

incorporated by reference, the Agency denies Respondent's Exception No.7.

In Exception No. 8, Respondent takes exception to the last sentence of Paragraph 67 of

the Recommended Order, arguing the finding of fact therein is not based on competent,

substantial evidence. Despite Respondent's argument to the contrary, the finding of fact in the

last sentence of Paragraph 67 of the Recommended Order is based on competent, substantial

record evidence. See Transcript, Volume 2, Pages 151-152; Petitioner's Exhibit 8.c. at Bates

Pages 467-468. Thus, the Agency cannot reject or modify it. See § 120.57(1)(1), Fla. Stat.;

Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No.8.

In Exception No. 9, Respondent takes exception to Paragraph 74 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 74 of the

Recommended Order are based on competent, substantial record evidence. See Petitioner's

Exhibit 9.b. at Bates Page 702. Thus, the Agency cannot reject or modify them. See §

120.57(1)(1), Fla . Stat.; Heifetz, 475 So . 2d at 1281. Therefore, the Agency denies Exception

No.9.

In Exception No. 10, Respondent takes exception to Paragraph 77 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 77 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Page 160. Thus, the Agency cannot reject or modify them. See § 120.57(1)(/), Fla.

Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No . 10.

In Exception No. 11, Respondent takes exception to Paragraph 79 ofthe Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Based on the Agency's rulings on Respondent's Exception Nos. 8- 10 supra, which are hereby

incorporated by reference, the Agency denies Respondent ' s Exception No. 11.

In Exception No. 12, Respondent takes exception to Paragraph 80 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 80 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Pages 161-162; Petitioner's Exhibit 8.d. at Bates Pages 534-535. Thus, the Agency

cannot reject or modify them. See § 120.57(1)(/), Fla. Stat.; Heifetz, 475 So . 2d at 1281.

Therefore, the Agency denies Exception No. 12.

In Exception No. 13 , Respondent takes exception to Paragraph 92 of the Recommended

Order, arguing the findings of fact therein are not based on competent , substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 92 of the

Recommended Order are based on competent, substantial record evidence . See Transcript.

Volume 2, Pages 168-173; Petitioner's Exhibit 7.b. at Bates Page 373; Petitioner's Exhibit 8.d. at

Bates Page 588. Thus, the Agency cannot reject or modify them. See§ 120.57(1)(/), Fla. Stat.;

Heifetz, 475 So. 2d at 1281. Therefore , the Agency denies Exception No. 13.

In Exception No. 14 , Respondent takes exception to Paragraph 93 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 93 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Pages 172-173. Thus, the Agency cannot reject or modify them. See§ 120.57(1)(1),

Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No. 14.

In Exception No. 15, Respondent takes exception to Paragraph 94 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Based on the Agency's rulings on Respondent's Exception Nos. 12- 14 supra, which are hereby

incorporated by reference, the Agency denies Respondent's Exception No. 15.

In Exception No. 16, Respondent takes exception to the last sentence of Paragraph 95 of

the Recommended Order, arguing the findings of fact therein are not based on competent,

substantial evidence. Despite Respondent's argument to the contrary, the findings of fact in the

last sentence of Paragraph 95 of the Recommended Order are based on competent, substantial

record evidence. See Transcript, Volume 2, Pages 174-177; Petitioner's Exhibit 8.e. at Bates

Pages 589-590. Thus, the Agency cannot reject or modify them. See § 120.57(1)(1), Fla. Stat.;

Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No. 16.

In Exception No. 17, Respondent takes exception to Paragraph 98 of the Recommended

Order, arguing "the finding impermissibly shifts the burden of proof to the Respondent." What a

finding may or may not do is not valid a basis for the Agency to reject or modify it. The findings

of fact in Paragraph 98 of the Recommended Order are based on competent, substantial record

evidence. See Transcript, Volume 2, Page 177. Thus, the Agency is prohibited from rejecting or

modifying them. See § 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the

Agency denies Exception No. 17.

In Exception No. 18, Respondent takes exception to Paragraph 99 of the Recommended

Order, arguing the findings of fact therein are not based on competent, substantial evidence.

Despite Respondent's argument to the contrary, the findings of fact in Paragraph 99 of the

Recommended Order are based on competent, substantial record evidence. See Transcript,

Volume 2, Pages 177-178; Petitioner's Exhibit 8.e. at Bates Page 624. Thus, the Agency is

unable to reject or modify them. See § 120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

Therefore, the Agency denies Exception No. 18.

In Exception No. 19, Respondent takes exception to Paragraph 103 of the Recommended

Order, arguing the finding of fact in that paragraph is not based on competent, substantial

evidence. Contrary to Respondent's argument, the finding of fact in Paragraph 103 of the

Recommended Order is based on competent, substantial record evidence. See Transcript,

Volume 2, Page 182. Thus, the Agency is not at liberty to reject or modify it. See §

120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception

No. 19.

In Exception No. 20, Respondent takes exception to Paragraph 104 of the Recommended

Order, arguing the findings of fact in the last two sentences of the paragraph are not based on

competent, substantial evidence. Despite Respondent's argument to the contrary, the findings of

fact in the last two sentences of Paragraph 104 of the Recommended Order are based on

competent, substantial record evidence. See Transcript, Volume 2, Pages 178-179; Petitioner's

Exhibit 7.b. at Bates Pages 374-380; Petitioner's Exhibit 8.e. at Bates Page 627. Thus, the

Agency cannot reject or modify them. See§ 120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

Therefore, the Agency denies Exception No. 20.

In Exception No. 21, Respondent takes exception to Paragraph 105 of the Recommended

Order, arguing the finding of fact in that paragraph is not based on competent, substantial

evidence. Contrary to Respondent's argument, the finding of fact in Paragraph 105 of the

Recommended Order is based on competent, substantial record evidence. See Transcript,

Volume 2, Page 182. Thus, the Agency is prohibited from rejecting or modifying it. See §

120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception

No. 21.

In Exception No. 22, Respondent takes exception to Paragraph 106 of the Recommended

Order, arguing the finding of fact in that paragraph is not based on competent, substantial

evidence. Based on the Agency's rulings on Respondent's Exception Nos. 16-21 supra, which

are hereby incorporated by reference, the Agency denies Respondent's Exception No. 22.

In Exception No. 23, Respondent takes exception to Paragraph 107 of the Recommended

Order, arguing the finding of fact in that last sentence of that paragraph is not based on

competent, substantial evidence. Despite Respondent's argument to the contrary, the finding of

fact in the last sentence of Paragraph 107 of the Recommended Order is based on competent,

substantial record evidence. See Transcript, Volume 2, Pages 183-184; Petitioner's Exhibit 8.f.

at Bates Pages 629-630. Thus, the Agency cannot reject or modify it. See § 120.57(1)(!), Fla.

Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No. 23.

In Exception No. 24, Respondent takes exception to Paragraph 108 of the Recommended

Order, arguing the finding of fact in the last sentence of that paragraph is not based on

competent, substantial evidence. Contrary to Respondent's argument, the finding of fact in the

last sentence of Paragraph 1 08 of the Recommended Order is based on competent, substantial

record evidence. See Transcript, Volume 2, Pages 184-186; Petitioner's Exhibit 8.f. at Bates

Page 658. Thus, the Agency cannot reject or modify it. See § 120.57(1)(!), Fla. Stat.; Heifetz,

475 So. 2d at 1281. Therefore, the Agency denies Exception No. 24.

In Exception No. 25, Respondent takes exception to Paragraph 111 of the Recommended

Order, arguing the finding of fact in the last sentence of that paragraph is not based on

competent, substantial evidence. Despite Respondent's argument to the contrary, the finding of

fact in the last sentence of Paragraph Ill of the Recommended Order is based on competent,

substantial record evidence. See Transcript, Volume 2, Pages 188-189; Petitioner's Exhibit 7 .b.

at Bates Pages 381-392; Petitioner's Exhibit 8.f. at Bates Page 688. Thus, the Agency is unable

to reject or modify it. See§ 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the

Agency denies Exception No. 25.

In Exception No. 26, Respondent takes exception to Paragraph 112 of the

Recommended Order, arguing the finding of fact in that paragraph is not based on competent,

substantial evidence. Contrary to Respondent's argument, the finding of fact in Paragraph 112 of

the Recommended Order is based on competent, substantial record evidence. See Petitioner's

Exhibit 9.e. at Bates Page 713. Thus, the Agency cannot reject or modify it. See§ 120.57(1)(/),

Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No. 26.

In Exception No. 27, Respondent takes exception to Paragraph 115 of the Recommended

Order, arguing the finding of fact in that paragraph is not based on competent, substantial

evidence. Despite Respondent's argument to the contrary, the finding of fact in Paragraph 115

of the Recommended Order is based on competent, substantial record evidence. See Transcript,

Volume 2, Page 191. Thus, the Agency cannot reject or modify it. See§ 120.57(1)(/), Fla. Stat.;

Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No. 27.

In Exception No. 28, Respondent takes exception to Paragraph 116 of the Recommended

Order, arguing the finding of fact in that paragraph is not based on competent, substantial

evidence. Based on the Agency's rulings on Respondent's Exception Nos. 23-27 supra, which

are hereby incorporated by reference, the Agency denies Respondent's Exception No. 28.

In Exception No. 29, Respondent takes exception to Paragraph 119 of the Recommended

Order, arguing the finding of fact in that last sentence of that paragraph is not based on

competent, substantial evidence. Based on the Agency's rulings on Respondent's Exception

Nos. 1- 28 supra, which are hereby incorporated by reference, the Agency denies Respondent's

Exception No. 29.

In Exception No. 30, Respondent takes exception to Paragraph 126 of the Recommended

Order, arguing the conclusions of law in that paragraph are not supported by competent,

substantial evidence. First, to the extent Paragraph 126 of the Recommended Order contains

findings of fact, Respondent's argument fails because they are supported by competent,

substantial record evidence. See the Agency's rulings on Respondent's Exception Nos. 1 - 28

supra, which are hereby incorporated by reference. Second, Respondent is asking the Agency to

re-weigh the record evidence in this matter, which it is prohibited from doing. See Heifetz, 475

So. 2d at 1281. Third, while the Agency has substantive jurisdiction over the conclusions of law

in Paragraph 126 of the Recommended Order because it is the single state agency in charge of

administering Florida's Medicaid program, it cannot substitute conclusions of law as or more

reasonable than those of the ALJ. Therefore, for all the reasons stated above, the Agency denies

Exception No. 30.

In Exception No. 31, Respondent takes exception to Paragraph 127 ofthe Recommended

Order, arguing the conclusions of law in that paragraph are not supported by competent,

substantial evidence. First, to the extent Paragraph 127 of the Recommended Order contains

findings of fact, Respondent's argument fails because they are supported by competent,

substantial record evidence. See the Agency's rulings on Respondent's Exception Nos. 1 - 28

supra, which are hereby incorporated by reference. Second, Respondent is asking the Agency to

re-weigh the record evidence in this matter, which it is prohibited from doing. See Heifetz, 475

So. 2d at 1281. Third, while the Agency has substantive jurisdiction over the conclusions of law

in Paragraph 127 of the Recommended Order because it is the single state agency in charge of

administering Florida's Medicaid program, it cannot substitute conclusions of law as or more

reasonable than those of the ALJ. Therefore, for all the reasons stated above, the Agency denies

Exception No. 31.

In Exception No. 32 , Respondent takes exception to Paragraph 128 of the Recommended

Order, arguing the paragraph addresses an issue that is outside the scope of the Agency's Final

Audit Report. Paragraph 128 of the Recommended Order addresses an issue Respondent raised

in Pages 9-10 of its Proposed Recommended Order. Further, Paragraph 128 of the

Recommended Order is a restatement of a statute. Respondent cannot refute its content or its

applicability to Medicaid providers (who are obligated to comply with it when they enter into

provider agreements with the Agency). Therefore, the Agency denies Exception No. 32.

In Exception No. 33, Respondent takes exception to Paragraph 129 of the Recommended

Order, arguing the conclusions of law in that paragraph are not based on competent, substantial

evidence. First , to the extent Paragraph 129 of the Recommended Order contains findings of

fact, Respondent's argument fails because they are supported by competent, substantial record

evidence. See the Agency's rulings on Respondent's Exception Nos. 1 - 28 supra, which are

hereby incorporated by reference. Second, Respondent is asking the Agency to re-weigh the

record evidence in this matter, which it is prohibited from doing. See Heifetz, 475 So. 2d at

1281. Third , while the Agency has substantive jurisdiction over the conclusions of law in

Paragraph 129 of the Recommended Order because it is the single state agency in charge of

administering Florida's Medicaid program, it cannot substitute conclusions of law as or more

reasonable than those of the ALJ. Therefore, the Agency denies Exception No. 33.

In Exception No. 34, Respondent takes exception to Paragraph 130 of the Recommended

Order, arguing the conclusions of law in that paragraph are not based on competent, substantial

evidence. First, to the extent Paragraph 130 of the Recommended Order contains findings of

fact, Respondent's argument fails because they are supported by competent, substantial record

evidence. See the Agency's rulings on Respondent's Exception Nos. 1 - 28 supra, which are

hereby incorporated by reference. Second, Respondent is asking the Agency to re-weigh the

record evidence in this matter, which it is prohibited from doing. See Heifetz, 475 So. 2d at

1281. Third, while the Agency has substantive jurisdiction over the conclusions of law in

Paragraph 130 of the Recommended Order because it is the single state agency in charge of

administering Florida's Medicaid program, it cannot substitute conclusions of law as or more

reasonable than those of the ALJ. Therefore, the Agency denies Exception No. 34.

In Exception No. 35, Respondent takes exception to Paragraph 131 of the Recommended

Order, arguing the conclusions of law in that paragraph impermissibly shift the burden of proof

to Respondent. The conclusions of law in Paragraph 131 of the Recommended Order are a

correct summary of section 409.912(21) & (22), Florida Statutes. The Agency finds that, while

it has substantive jurisdiction over the conclusions of law in Paragraph 131 of the Recommended

Order because it is the single state agency in charge of administering Florida Medicaid program,

it cannot substitute conclusions of law that are as or more reasonable than those of the ALJ.

Therefore, the Agency denies Exception No. 35.

In Exception No. 36, Respondent takes exception to Paragraph 132 of the Recommended

Order, arguing the conclusions of law in that paragraph impermissibly shift the burden of proof

to Respondent. Paragraph 132 is the ALJ's summarization of Agency caselaw concerning the

application of section 409.913(22), Florida Statutes to Medicaid overpayment cases. The

Agency cannot substitute conclusions of law as or more reasonable than those of the ALJ in that

paragraph. Therefore, the Agency denies Exception No. 36.

In Exception No. 37, Respondent takes exception to Paragraph 133 of the Recommended

Order, arguing the conclusion of law in that paragraph impermissibly shifts the burden of proof

to Respondent. Paragraph 133 of the Recommended Order is the ALJ's correct interpretation of

section 409.913(22), Florida Statutes, and is well-supported by established Agency precedence

as demonstrated by the ALJ in Paragraph 132 of the Recommended Order. Therefore, the

Agency denies Exception No. 37.

In Exception No. 38, Respondent takes exception to Paragraph 134 of the Recommended

Order, arguing the conclusions of law in that paragraph improperly shift the burden of proof to

Respondent. Based on the Agency's rulings on Exception Nos. 36 and 37 supra, which are

hereby incorporated by reference, the Agency denies Exception No. 38.

In Exception No. 39, Respondent takes exception to Paragraph 135 of the Recommended

Order, arguing the conclusions of law in that paragraph improperly shift the burden of proof to

Respondent. Based on the Agency's rulings on Exception Nos. 36 and 37 supra, which are

hereby incorporated by reference, the Agency denies Exception No. 39.

In Exception No. 40, Respondent takes exception to Paragraph 136 of the Recommended

Order, arguing the conclusions of law in that paragraph improperly shift the burden of proof to

Respondent. Based on the Agency's rulings on Exception Nos. 36 and 37 supra, which are

hereby incorporated by reference, the Agency denies Exception No. 40.

In Exception No. 41, Respondent takes exception to Paragraph 137 of the Recommended

Order, arguing the conclusion of law in that paragraph is not supported by competent, substantial

evidence. First, to the extent Paragraph 13 7 of the Recommended Order contains findings of

fact, Respondent's argument fails because they are supported by competent, substantial record

evidence. See the Agency's rulings on Respondent's Exception Nos. 1 - 28 supra, which are

hereby incorporated by reference. Second, Respondent is asking the Agency to re-weigh the

record evidence in this matter, which it is prohibited from doing. See Heifetz, 475 So. 2d at

1281. Third, while the Agency has substantive jurisdiction over the conclusions of law in

Paragraph 137 of the Recommended Order because it is the single state agency in charge of

administering Florida's Medicaid program, it cannot substitute conclusions of law as or more

reasonable than those of the ALJ. Therefore, the Agency denies Exception No. 41.

In Exception No. 42, Respondent takes exception to Paragraph 140 of the Recommended

Order, arguing the conclusion of law in that paragraph is not supported by competent, substantial

evidence. Based on the Agency's rulings on Exception Nos 1 - 28 supra, which are hereby

incorporated by reference, the Agency finds that, while it has substantive jurisdiction over the

conclusion of law in Paragraph 140 of the Recommended Order because it is the single state

agency in charge of administering Florida's Medicaid program, it cannot substitute a conclusion

oflaw as or more reasonable than that of the ALJ. Therefore, the Agency denies Exception No.

42.

In Exception No. 43, Respondent takes exception to Paragraph 142 of the Recommended

Order, arguing the ALI's conclusion oflaw in that paragraph is erroneous. Paragraph 142 of the

Recommended Order is a correct summarization of section 409.913(9), Florida Statutes. The

Agency cannot substitute a conclusion of law that is as or more reasonable than that of the ALJ

in Paragraph 142 of the Recommended Order. Therefore, the Agency denies Exception No. 43.

In Exception No. 44, Respondent takes exception to Paragraph 143 of the Recommended

Order, arguing the conclusions of law in that paragraph are not supported by competent,

substantial evidence. First, to the extent Paragraph 143 of the Recommended Order contains

findings of fact, Respondent's argument fails because they are supported by competent,

substantial record evidence. See the Agency's rulings on Respondent's Exception Nos . 1 - 28

supra, which are hereby incorporated by reference. Second, Respondent is asking the Agency to

re-weigh the record evidence in this matter, which it is prohibited from doing. See Heifetz, 475

So. 2d at 1281. Third, while the Agency has substantive jurisdiction over the conclusions of law

in Paragraph 143 of the Recommended Order because it is the single state agency in charge of

administering Florida's Medicaid program, it cannot substitute conclusions of law as or more

reasonable than those of the ALJ. Therefore, the Agency denies Exception No. 44.

In Exception No. 45, Respondent takes exception to Paragraph 147 of the Recommended

Order, arguing the conclusions of law in that paragraph improperly shift the burden of proof to

Respondent and that section 409.913(22), Florida Statutes, is unconstitutional. First, the

conclusions of law in Paragraph 14 7 of the Recommended Order correctly summarize section

409.913(22), Florida Statutes, and are supported by prior Agency precedent as cited by the ALJ.

See also the Agency's rulings on Exception Nos. 35 - 40 supra. Second, the Agency does not

have jurisdiction to rule on the constitutionality of a statute. See Smith v. Willis, 415 So. 2d

13 31 (Fla. 1st DCA 1982) ("While a Florida agency may construe a statute or apply it mindful of

constitutional influences, questions of facial statutory validity must either be carried unparsed

through the administrative process to a District Court of Appeal, for decision there if necessary,

or they must be decided collaterally in circuit court."). Therefore, the Agency denies Exception

No.45.

In Exception No. 46, Respondent takes exception to Paragraph 151 of the Recommended

Order, arguing the conclusion of law in that paragraph is not supported by competent, substantial

evidence. The Agency's rulings on Exception Nos. 1 -28 supra, which are hereby incorporated

by reference, soundly refute Respondent's argument, as do the findings of fact in Paragraph 51

of the Recommended Order, to which Respondent did not take exception. Therefore, the Agency

denies Exception No. 46.

In Exception No. 47, Respondent takes exception to Paragraph 152 ofthe Recommended

Order, arguing the conclusion of law in that paragraph is not supported by competent, substantial

evidence. The Agency's rulings on Exception Nos. 1 -28 supra, which are hereby incorporated

by reference, soundly refute Respondent's argument. Therefore, the Agency denies Exception

No.47.

In Exception No. 48, Respondent takes exception to Paragraph 153 of the Recommended

Order, arguing the conclusion of law in that paragraph is not supported by competent, substantial

evidence. The Agency's rulings on Exception Nos. 1 - 28 supra, which are hereby incorporated

by reference, soundly refute Respondent's argument, as do the findings of fact in Paragraph 51

of the Recommended Order, to which Respondent did not take exception. Therefore, the Agency

denies Exception No. 48.

In Exception No. 49, Respondent takes exception to Paragraph 161 of the Recommended

Order, arguing the conclusions of law in that paragraph are not supported by competent,

substantial evidence, that the ALJ failed to specify which documentation Respondent submitted

after the Preliminary Audit Report (PAR) was issued, and that the Agency failed to prove its

entitlement to sanctions by clear and convincing evidence. The conclusions of law in Paragraph

161 of the Recommended Order concern an evidentiary issue that is outside the Agency's

substantive jurisdiction. See Barfield v. De p artment of Health, 805 So. 2d 1008, 1 011 (Fla. 1st

DCA 2002). Therefore, the Agency must deny Exception No. 49.

In Exception No. 50, Respondent takes exception to Paragraph 162 of the Recommended

Order, arguing the conclusions of law in that paragraph are not supported by competent,

substantial evidence, that the ALJ failed to specify which documentation Respondent submitted

after the Preliminary Audit Report (PAR) was issued, and that the Agency failed to prove its

entitlement to sanctions by clear and convincing evidence. To the extent Paragraph 162 of the

Recommended Order contains findings of fact, they are supported by competent, substantial

record evidence. See the Agency's rulings on Exception Nos. 1 - 28 supra, which are hereby

incorporated by reference. The ALJ's conclusions oflaw in Paragraph 162 of the Recommended

Order are a correct application of the Agency's rules to the facts and are the result of the ALJ' s

weighing of the evidence presented in this matter. Respondent is asking the Agency to re-weigh

the evidence to reach different conclusions of law. However, the Agency cannot do so. See

Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Exception No. 50.

In Exception No . 51, Respondent takes exception to Paragraph 163 of the

Recommended Order, arguing the conclusions of law in that paragraph are not supported by

competent, substantial evidence, that the ALJ failed to specify which documentation Respondent

submitted after the Preliminary Audit Report (PAR) was issued, and that the Agency failed to

prove its entitlement to sanctions by clear and convincing evidence. To the extent Paragraph 163

of the Recommended Order contains findings of fact, they are supported by competent,

substantial record evidence. See the Agency's rulings on Exception Nos. 1-28 supra, which are

hereby incorporated by reference. The ALJ' s conclusion of law in Paragraph 163 of the

Recommended Order that Petitioner is entitled to costs it incurred in this matter pursuant to

section 409.913(23), Florida Statutes, is based on the ALJ's weighing of the evidence presented.

Respondent is asking the Agency to re-weigh the evidence to reach a different conclusion oflaw.

However, the Agency cannot do so. See Heifetz, 475 So. 2d at 1281. Therefore, the Agency

denies Exception No. 51.

FINDINGS OF FACT

The Agency adopts the findings of fact set forth in the Recommended Order .

CONCLUSIONS OF LAW

The Agency adopts the conclusions of law set forth in the Recommended Order.

IT IS THEREFORE ADJUDGED THAT:

Respondent is hereby required to repay the Agency $263,791.60 in overpayments, plus

interest at a rate of ten (10) percent per annum as required by Section 409.913(25)(c), Florida

Statutes, to the Agency. Additionally, the Agency hereby imposes fines in the amount of

$52,758.32 and $2,500.00 on Respondent. Respondent shall make full payment of the

overpayment and fines to the Agency for Health Care Administration within 30 days of the

rendition date of this Final Order unless other payment arrangements have been agreed to by the

parties. Respondent shall pay by check payable to the Agency for Health Care Administration

and mailed to the Agency for Health Care Administration, Office of Finance and Accounting,

2727 Mahan Drive, Mail Stop 14, Tallahassee, Florida 32308.

Additionally, since the Agency has prevailed in this matter, it is entitled to recover the

investigative, legal, and expert witness costs it incurred in this matter. § 409.913(23), F.S. The

parties shall attempt to agree to amount of investigative, legal, and expert witness costs for this

matter. If the parties are unable to reach such agreement, either party may file a request for

hearing with the Division of Administrative Hearings under this case style within 30 days of the

date of rendition of this Final Order, and the Administrative Law Judge who presided over this

matter shall determine the amount of such co ,_

DONE and ORDERED day of , 2021, in Tallahassee,

Florida.

SIMONE MARSTILLER, SECRETARY

AGENCY FOR HEALTH CARE ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL

NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG

WITH THE FILING FEE PRESCRIBED BY LAW WITH THE DISTRICT COURT OF

APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS

HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL

BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE

NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE

ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has

0

been furnished to the persons named below by the method designated on this of

M reA , 2o21.

RICHARD J . SHOOP, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

[phone]

COPIES FURNISHED TO:

Honorable Robert S. Cohen

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(via electronic filing)

Bradley Butler, Jr., Esquire

Susan Sapoznikoff, Esquire

Assistant General Counsels

(via electronic mail)

Christopher A. Parrella, J.D.

Daniel Ferrante, Esquire

The Health Law Offices of

Anthony C. Vitale, P .A .

2333 Brickell Avenue , Suite A-1

Miami, Florida 33129

(via electronic mail to [e-mail];

[e-mail] and [e-mail])

Sean Ellsworth, Esquire

1 000 5th Street

Miami Beach , Florida 33139

(via electronic mail to [e-mail])

Medicaid Program Integrity

Office of the Inspector General

(via electronic mail)

Medicaid Accounts Receivable

Finance & Accounting

(via electronic mail)