YUSMARY GARCIA RIVERON v. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION

• Court: District Court of Appeal of Florida
• Decided: October 6, 2022
• Docket: 22-0322
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 6, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-0322 Lower Tribunal No. 2021-0021535 ________________

Yusmary Garcia Riveron, Appellant,

vs.

State of Florida, Agency for Health Care Administration, Appellee.

An appeal from the State of Florida, Agency for Health Care Administration.

Yusmary Garcia Riveron, in proper person.

Eugenia Keough Rains, Senior Attorney (Tallahassee), for appellee.

Before FERNANDEZ, C.J., and MILLER, and BOKOR, JJ.

MILLER, J. Before us for review is a final order of the Agency for Health Care

Administration (“AHCA”) terminating appellant, Yusmary Garcia Riveron,

with cause, from participation in the Florida Medicaid Program. The order

cites section 409.913, Florida Statutes (2021), which permits AHCA to

terminate Medicaid participation upon information the provider is not in

compliance with specified regulatory provisions. It was entered after Garcia

Riveron failed to request an administrative hearing within twenty-one days of

receiving notice of AHCA’s intended action.

On appeal, Garcia Riveron contends she is entitled to equitable tolling

due, in part, to certain pandemic-related events beyond her control. Such a

claim is plainly available under Florida Administrative Code Rule 28-

106.111(4), and here, entitlement to relief turns on undeveloped factual

issues. We decline to consider those issues in the first instance and instead

remand for an evidentiary hearing on the limited issue of whether equitable

tolling applies to excuse the failure to request a hearing. See Hurley v. Dep’t.

of Bus. & Pro. Regul., 965 So. 2d 359, 359 (Fla. 4th DCA 2007) (remanding

for evidentiary hearing on whether equitable tolling operates to excuse

contractor’s failure to timely request a hearing); see also Nicks v. Dep’t of

Bus. & Pro. Etc., 957 So. 2d 65, 68 (Fla. 5th DCA 2007) (“Because the

resolution of [appellant’s] equitable tolling claim requires credibility and

2 factual determinations, we must remand this matter to the [Construction

Industry Licensing] Board for an evidentiary hearing.”); Brown v. State, Dep’t

of Fin. Servs., 899 So. 2d 1246, 1247–48 (Fla. 4th DCA 2005) (same);

Avante, Inc. v. Agency for Health Care Admin., 722 So. 2d 965, 966 (Fla. 1st

DCA 1998) (same); § 120.68(7)(a), Fla. Stat. (2022) (“The court shall remand

a case to the agency for further proceedings . . . when it finds that . . . [t]here

has been no hearing prior to agency action and the reviewing court finds that

the validity of the action depends upon disputed facts . . . .”). Alternatively,

the Agency may elect not to afford Garcia Riveron a hearing on her equitable

tolling claim, and instead accept her factual allegations as true, and afford

her a hearing to contest the factual allegations of the administrative

complaint. See Hurley, 965 So. 2d at 359–60 (citing Nicks, 957 So. 2d at

68).

Remanded.