Cma v. Oir, 1D07-0184.

• Decision Date: 05 May 2008
• Docket Number: No. 1D07-0184.,1D07-0184.
• Citation: 983 So.2d 45
• Parties: COMPREHENSIVE MEDICAL ACCESS, INC., Appellant, v. OFFICE OF INSURANCE REGULATION, Appellee.
• Court: Florida District Court of Appeals

983 So.2d 45

COMPREHENSIVE MEDICAL ACCESS, INC., Appellant, v. OFFICE OF INSURANCE REGULATION, Appellee.

No. 1D07-0184.

District Court of Appeal of Florida, First District.

May 5, 2008.

Rehearing Denied June 9, 2008.

Joseph S. Rosenbaum, Miami, for Appellant.

Elenita Gomez and S. Marc Herskovitz, Office of Insurance Regulation, Tallahassee, for Appellee.

PER CURIAM.

Comprehensive Medical Access, Inc. ("CMA") seeks review of a final order of the Office of Insurance Regulation ("OIR"), adopting the recommended order of an administrative law judge ("ALJ") and denying CMA's application for approval of its health flex plan. CMA contends that OIR abused its discretion in denying the application because it presented competent substantial evidence that it was entitled to administer a health flex plan and there was a lack of competent substantial evidence to support the denial. We agree. Accordingly, we reverse OIR's final order and remand with directions to OIR to approve CMA's health flex plan. The remaining issues raised in CMA's appeal are without merit and require no discussion.

In response to CMA's application for health flex plan approval, OIR issued a letter of disapproval, informing CMA that it had failed to demonstrate entitlement, as required by section 408.909(3)(b), Florida Statutes (2005). OIR specified that CMA's application was being denied because CMA's sole owner, Dr. Jack Michel, along with his brother, had been named in a civil suit brought by the United States government. In the complaint, the United States government alleged that Dr. Michel and many of the businesses in which he had an ownership interest had committed fraud in relation to the practice of medicine. Because of these allegations, OIR concluded that CMA could not demonstrate compliance with the standards listed in section 624.404(3), Florida Statutes, as required by section 408.909(3)(b).

CMA petitioned for a formal adversarial hearing based on its understanding that the application had been denied on the basis of hearsay alone. At the adversarial hearing, the only issue considered was whether CMA could overcome the concerns raised in the letter of disapproval. The federal civil complaint was admitted into evidence at the hearing, but there was no testimony or other evidence admitted regarding the truth or falsity of the allegations contained therein. Instead, OIR relied on the existence of the civil complaint, paired with CMA's burden to prove entitlement to approval, to support its denial of the application. CMA presented testimony to demonstrate its qualifications to administer a health flex plan, but it did not attempt to refute the allegations in the civil complaint.

The ALJ found that the existence of the civil complaint was "sufficient to raise the issue" of Dr. Michel's fitness to operate CMA as a health flex entity, as it raised questions regarding his trustworthiness. Although the ALJ found that Dr. Michel had "establish[ed] by persuasive and credible evidence that he is competent to own and operate an entity providing a health flex plan," she ultimately recommended a denial of CMA's application based on her conclusion that CMA failed to overcome OIR's concerns, and thus, had failed to meet its burden of persuasion. OIR adopted the ALJ's recommended order...