JOHN A. ROWE, APPELLANT,
v.
AGENCY FOR HEALTH CARE ADMINISTRATION, APPELLEE
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John Rowe, a dentist convicted of federal crimes of conspiracy and money laundering, appeals the Agency for Health Care Administration's termination of his Medicaid provider numbers and twenty-year exclusion from the state's Medicaid program. The court affirmed, holding that the exclusion was a regulatory measure, not punitive, and therefore did not violate the ex post facto clause or due process requirements.
The court held that the ex post facto clause applies only to penal legislation and not to regulatory measures such as the Medicaid exclusion statute, which was enacted for public protection purposes and did not increase the penalty for Rowe's crimes. The court also held that the due process claim failed because Rowe received notice of both the hearing officer's recommended order and the Agency's final order, as evidenced by his appropriate responses to both.
[1] The prohibition against ex post facto laws applies only to penal legislation, not to regulatory laws enacted to protect the public.
[2] A statute limiting a provider's privilege to participate in a state Medicaid program, following a conviction for financial misconduct, is regulatory in nature and not pun…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The prohibition against ex post facto laws applies only to penal legislation and not to laws, such as subsection 409.907(9)(f), which are regulatory in nature, enacted solely for the purpose of protecting the public from medical providers who have been adjudicated guilty of crimes of dishonesty.”
Establishes the foundational distinction between penal and regulatory legislation that defeats Rowe's ex post facto challenge.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRowe was a Florida-licensed dentist authorized to treat Medicaid patients. In February 1995, he was convicted in federal court of conspiracy and money…
The full statement of facts, procedural history, and disposition for this case are member content.
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ANTOON, Judge.
John Rowe appeals the final order entered by the Agency for Health Care Administration (Agency), terminating his Medicaid provider numbers. Rowe contends the Agency’s action violated the ex post facto and due process clauses of the Constitution of the State of Florida.1 We disagree and therefore affirm.2
Rowe was a dentist licensed to practice in Florida and authorized by the state to treat Medicaid patients. In February 1995, he was convicted in federal court of committing the crimes of conspiracy and money laundering. As a result of these convictions, the Agency terminated Rowe’s Medicaid provider numbers and excluded him from participating in the state’s Medicaid program for a term of twenty years. To support its decision, the Agency cited to subsection 409.907(9)(f) of the Florida Statutes (Supp. 1996), which provides, in relevant part:
409.907 Medicaid provider agreements.—
* * * * * *
(9) The agency may deny enrollment in the Medicaid program to a provider if the provider ... has:
* * * * * * (f) Been convicted of any criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct....
Rowe appeals this decision, arguing the Agency's application of subsection 409.907(9)(f) violated the prohibition against ex post facto application of laws because the 1996 amendment to section 409.907 was enacted after his 1995 convictions were entered. We disagree.
The prohibition against ex post fac-to laws applies only to penal legislation and not to laws, such as subsection 409.907(9)(f), which are regulatory in nature, enacted solely for the purpose of protecting the public from medical providers who have been adjudicated guilty of crimes of dishonesty. See Manocchio v. Kusserow, 961 F. 2d 1539, 1542 (11th Cir.1992) (interpreting ex post facto clause of the Federal Constitution). See generally Blankenship v. Dugger, 521 So. 2d 1097, 1099 (Fla.1988). Importantly, the amendments to subsection 409.907(9)(f) did not increase the penalty imposed upon Rowe for his crimes, but instead, simply limited his privilege to participate in the state’s Medicaid program. Therefore, the constitutional prohibition against ex post facto laws was not implicated here where the twenty-year exclusion was regulatory, not punitive. See Manocchio, 961 F. 2d at 1542.
Rowe also claims that he was denied due process of law because he was not provided with notice of the filing of the hearing officer’s recommended order or the Agency’s final order. However, the record belies this assertion since Rowe responded appropriately to both of the orders. Furthermore, Rowe fails to articulate how he would have--proceeded differently if he had received timely notice of the two orders. Accordingly, this argument also fails to support reversal in this case. ' . •
AFFIRMED.
DAUKSCH and W. SHARP, JJ., concur. . Art. I, §§ 9-10, Fla. Const. . Rowe raised two additional claims of error in his brief; however, these issues were not raised during the administrative hearing and as a result they have not been preserved for appellate review. See Rudloe v. Florida Dep't of Envtl. Regulation, 517 So. 2d 731, 733 (Fla. 1st DCA 1987).
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Mitchel Westerheide v. State, 767 So. 2d 637 (Fla. 5th DCA 2000)…a, 732 So. 2d at 1032. The prohibition against ex post fac-to laws only applies to criminal legislation, not to civil proceedings. See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Rowe v. Agency for Health Care Admin., 714 So. 2d 1108 (Fla. 5th DCA 1998); rev. denied, 727 So. 2d 910 (Fla.1999); see also Ortega v. State, 712 So. 2d 833 (Fla. 4th DCA 1998); Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA), rev. denied, 722 So. 2d 192 (Fla.), and cert. denied, 525 U.S. 1058, 119 S.Ct.…
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Lescher v. Fla. Dep't of Hwy. Safety & Motor Vehicles, 985 So. 2d 1078 (Fla. 2008)…(Fla. 2d DCA 1998) (holding that revocation of a contractor’s license was a civil sanction, not a criminal punishment, and did not bar criminal prosecution for fraud in violation of the Double Jeopardy Clause); Rowe v. Agency for Health Care Admin., 714 So. 2d 1108, 1110 (Fla. 5th DCA 1998) (finding no ex post facto violation where a dentist’s participation as a Medicaid provider was terminated upon his criminal conviction based on a statute enacted to protect the public but “did not increase the penalty” for…
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Fowler v. Dep't of Health, 821 So. 2d 1246 (Fla. 1st DCA 2002)…that he was disciplined on charge not included in administrative complaint, where appellant failed to file exceptions to ALJ’s recommended order that found particular acts violated applicable standard of care); Rowe v. Agency for Health Care Admin., 714 So. 2d 1108 (Fla. 5th DCA 1998); Department of Corrections v. Barry, 438 So. 2d 874 (Fla. 1st DCA 1983) (finding that employee waived error based on insufficiency of notice, by failure timely to raise issue before commission or indicate he was precluded from re…
Authorities Cited
- Blankenship v. Dugger, 521 So. 2d 1097 (Fla. 1988)
- Rudloe v. Fla. Dep't OF Env't Reg. & Taylor Cnty. Bd. of Cnty. Comm'rs, 517 So. 2d 731 (Fla. 1st DCA 1987)
- Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992)