21-001350F Agency For Health Care Administration vs. Abella Yose Care Services, Inc. Status: Closed DOAH Final Order on Friday, June 4, 2021.

Summary: As having prevailed in the underlying matter, the Agency is entitled to $17,715.11 as reasonable fees and costs associated with DOAH Case No. 20-2884MPI.

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. 21 - 135 0F

vs.

A BELLA Y OSE C ARE S ERVICES , I NC . ,

Respondent .

/

F INAL O RDER

This matter came before the undersigned administrative law judge

(ÑALJÒ) on Petitioner Agency for Health Care AdministrationÔs (ÑAgencyÒ)

Motion to Re - o pen Case to D etermine Costs (ÑMotion to Re - open Ò) , filed in

Division of Administrative Hearings (ÑDOAHÒ) Case No. 20 - 2884MPI. DOAH

opened a new case to consider the fees and costs sought in the Motion to Re -

open and, based upon a response to the Motion to Re - open , as described more

fully below, no hearing is necessary to consider the reques t for an award of

fees and costs.

A PPEARANCES

For Petitioner: Bradley Stephen Butler, Jr., Esquire

Susan Sapoznikoff, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For R espondent: Anthony Vitale, Esquire

Daniel Ferrante, Esquire

The Health Law Offices of

Anthony C. Vitale, P.A.

2333 Brickell Avenue , Suite A - 1

Miami, Florida 33129

Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1000 5th Street, Suite 223

Miami Beach, Florida 33139

S TATEMENT O F T HE I SSUE

The issue for determination in this matter is the amount of costs,

pursuant to section 409.913(23), Florida Statutes (2020), to be awarded to the

Agency , the prevailing party in Case No. 20 - 2884MPI.

P R ELIMINARY S TATEMENT

This proceeding to determine the amount of costs to be awarded to the

Agency arose from a Recommended Order entered by the undersigned on

February 3, 2021 , in Case No. 20 - 2884MPI, awarding $263,791.60 in

overpayments to Respondent, alon g with a sanction of $2,500.00, pursuant to

Florida Administrative Code R ule 59G - 9.070(7)(c), and a sanction of

$52,758.32, pursuant to rule 59G - 9.070(7)(e). The Agency entered its Final

Order adopting the Recommended Order on March 23, 2021, and providing

that the Agency is entitled to recover Ñall investigative and legal costs

incurred as a result of [the] audit, investigation, or enforcement action.Ò

The Agency seeks $17,715.11 in taxable costs and filed the AgencyÔs

Motion to Re - o pen on April 19, 2021. DOAH opened a new case file ( DOAH

Case No. 21 - 1350F) to deal with the issue of any awardable fees and costs .

Respondent filed a Response to AgencyÔs Motion to Re - o pen Case to

Determine Costs in which it noted that an appeal of the Final Order in Case

No . 20 - 2884MPI had been taken to the First District Court of Appeal and

assigned Case No. 1D21 - 1206. Without waiving any rights that would result

from a reversal of the underlying matter on appeal (i.e., legal costs and fees

would not be awarded to the Agenc y), Respondent does not object to the

amount of costs and fees submitted by the Agency.

F INDINGS O F F ACT

1. A Recommended Order was entered in Case No. 20 - 2884MPI by the

undersigned ALJ on February 3, 2021, upholding the overpayment

determined by the Age ncy, including the assessed sanction s, and awarding

costs.

2. The Recommended Order states, Ñthe Agency has established by a

preponderance of the evidence that it overpaid Respondent the sum of

$263,791.60 and that Respondent must reimburse the Agency for those

payments.Ò Recommended Order, p. 37, ¥ 2. The Recommended Order also

states, Ñthe Agency has proven by clear and convincing evidence that it is

entitled to a sanction of $2,500.00 pursuant to rule 59G - 9.070(7)(c), and a

sanction of $52,758.32 pursuan t to rule 59G9.070(7)(e) (capped at 20 percent

of the amount of the overpayment), for a total sanction of $55,258.32, to be

paid by Respondent[.]Ò Id . at ¶ 3.

3. On the issue of costs, the Recommended Order states:

[P]ursuant to section 409.913(23), the Ag ency, as

the prevailing party in this proceeding, is entitled

to recover costs, from Respondent, including all

investigative, legal, and expert witness costs as the

prevailing party. As of the time of the FAR, the

amount of these costs was $528.00. The fin al

amount of costs will be determined in a subsequent

proceeding to include costs incurred since issuance

of the FAR. The undersigned hereby reserves

jurisdiction regarding the final amount of costs,

and, if the amount of the costs cannot be resolved

betwe en the parties, the Agency may request a

hearing solely to establish the amount of the costs

to be awarded.

Id . at ¶ 3 .

4. The Final Order was rendered by the Agency on March 23, 2021.

5. The Final Order requires repayment by Respondent of $263,791.60 in

Medicaid overpayments and sanctions of $55,258.32.

6. The Final Order provides that the Agency is entitled to recover costs,

including all investigative, legal, and expert witness costs in accordance with

section 409.913(23).

7. Based upon Exhibit ÑAÒ to the Motion to Re - o pen, the Agency is entitled

to an award of taxable costs in the amount of $17,715.11. The AgencyÔs costs

include cost of the court reporter per diem for the hearing; transcript costs for

the hearing and depositions of Agency personnel tak en by Respondent; copies

of documents obtained in discovery; copies of documents filed with the

tribunal that were necessary to assist the undersigned ALJ in reaching a

conclusion; and the AgencyÔs personnel costs for investigative costs and legal

actions.

8. On April 21, 2021, Respondent filed a Notice of Appeal in the First

District Court of Appeal, which has been assigned C ase No. 1D21 - 1206. If

successful, RespondentÔs appeal would impact the Agency Ô s entitlement to

fees and costs in this case. Without w aiving any claims related to this appeal,

however, Respondent stated in its response to the Motion to Re - o pen that it

does not object to the amount of costs and fees submitted by the Agency.

9. Based upon the pleadings filed by the Agency and Respondent, a s well

as an independent review by the undersigned, the fees and costs claimed in

the AgencyÔs Motion to Re - o pen are reasonable.

C ONCLUSIONS O F L AW

10 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 1 20.569, 120.57(1), and 409.913(23)(a),

Florida Statutes (2020).

11. The MPI costs, salary costs, printing costs, deposition transcript of

Riley Edwards Seay, and final hearing costs consisting of the court reporter

per diem and one copy of the hearing tran script are reasonable and properly

awardable under section 409.913(23)(a).

12. The total amount of fees and costs sought by the Agency in the amount

of $17,715.11 are, therefore, reasonable.

O RDER

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

O RDERED that Respondent shall remit to the Agency $17,715.11 for fees and

costs associated with DOAH Case No. 20 - 2884MPI. The undersigned ALJ

reserves jurisdiction to consider the amount of appellate attorneyÔs fees and

costs should those be so ught by the Agency and awarded by the appellate

court.

D ONE A ND O RDERED this 4th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Fl orida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June , 2021 .

C OPIES F URNISHED :

Bradley Stephen Butler, Jr., Esquire Sean Michael Ellsworth, Esquire

Susan Sapoznikoff, Esquire Ellsworth Law Firm, P.A.

Agency for Health Care Ad ministration 1000 5th Street , Suite 223

2727 Mahan Drive , Mail Stop 3 Miami Beach, Florida 33139

Tallahassee, Florida 32308

Anthony Vitale, Esquire Shena L. Grantham, Esquire

Daniel Ferrante, Esquire Agency for Health Care Administration

Christopher A. Parrella, Esquire Building 3, Room 3407B

The Health Law Offices of 2727 Mahan Drive

Anthony C. Vitale, P.A. Tallahassee, Florida 32308

2333 Brickell Avenue , Suite A - 1

Miami, Florida 33 129 James D . Varnado, General Counsel

Agency for Health Care Administration

Thomas M. Hoeler, Esquire 2727 Mahan Drive, Mail Stop 3

Agency for Health Care Administration Tallahassee, Florida 32308

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Simone Marstiller , Secretary 2727 Mahan Drive, Mail Stop 3

Agency for Health Care Administration Tallahassee, Florida 32308

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308 - 5407

N OT ICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescri bed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.