STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AUREA R. TOMESKI, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3122
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
) ANTHONY KORVAS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3124
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
) GUSTAVE F. BIEBER, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3126
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
) VINCENT S. CONTI, M.D., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3127
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
)
SOUTHEAST VOLUSIA HOSPITAL )
DISTRICT, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3128
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
) SOUTHEAST VOLUSIA HOSPITAL )
DISTRICT, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3129
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
) HIGHLANDS COUNTY HOSPITAL )
DISTRICT, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3130
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
) MANATEE MEMORIAL HOSPITAL, )
et al., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3131
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
)
RONALD L. SPIELMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3136
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a formal hearing in this cause on February 14, 1983, at Tallahassee, Florida. Those parties who participated at the final hearing were represented as follows:
APPEARANCES
For Petitioners, Peter J. Winders, Esquire Highland County Martha J. Cook, Esquire Hospital District, David S. Dee, Esquire
et al., and Manatee Carlton, Fields, Ward, Memorial Hospital, Emmanuel, Smith & Cutler, P.A.
et al.: Lewis State Bank Building, Suite 410 Post Office Drawer 190
Tallahassee, Florida 32302 and
John D. Buchanan, Jr., Esquire Henry, Buchanan, Mick & English Post Office Drawer 1049 Tallahassee, Florida 32302
For Petitioners, Ben H. Wilkinson, Esquire Southeast Volusia Neil H. Butler, Esquire Hospital District, Pennington, Wilkinson & Dunlap et al.: 325 John Knox Road, Suite L-101
Post Office Box 3985 Tallahassee, Florida 32303
C. Bruce Hill, Esquire Adams & Hill
1200 Hartford Building
200 East Robinson Street Orlando, Florida 32801
For Respondent, David A. Yon, Esquire Department of 413-B Larson Building
Insurance: Tallahassee, Florida 32301
For Respondent, Richard B. Collins, Esquire Florida Patient's Samuel R. Neel, III, Esquire Compensation Fund: Perkins & Collins
702 Lewis State Bank Building Post Office Drawer 5286 Tallahassee, Florida 32302
Kenneth G. Oertel, Esquire Ortel & Hoffman
646 Lewis State Bank Building Tallahassee, Florida 32302
STATEMENT OF THE CASE
On September 22, 1982, the Department of Insurance ("Department") gave notice that the Insurance Commissioner ("Commissioner") intended to levy and authorized the Florida Patient's Compensation Fund ("Fund") to collect assessments from health care providers who were members of the Fund during fund years 1976-1977 and 1979-1980. The Department's proposed action was opposed by Petitioners, health care providers that are subject to the proposed assessments. Petitioners requested a formal administrative hearing to challenge the Department's proposed action.
Ten separate cases were consolidated for the final hearing which was scheduled for February 14, 1983. At the final hearing, the Fund called John W. Odem, Jerome Vogel, Robert L. Atkins, and Michael Rinehart, as its witnesses.
The Fund offered Respondent's Exhibits 1-19, each of which was received into evidence, except Respondent's Exhibit 14. The Department did not call any witnesses and did not offer any exhibits into evidence. Petitioners called Robert B. Atkins as their witness and offered Petitioners' Exhibits 1-25, each of which was received into evidence.
During the hearing, the Fund moved to dismiss those Petitioners that did not appear or participate at the final hearing, i.e., Aurea R. Tomeski (Case No. 82-3122), Anthony Korvas (Case No. 82-3124), Gustave F. Bieber (Case No. 82- 3126), Vincent S. Conti (Case No. 82-3127), Jose Ramon Azaret (Case No. 82- 3135), and Ronald L. Spielman (Case No. 82-3136).
FINDINGS OF FACT
In 1975 the Florida Legislature passed the Medical Malpractice Reform Act, Chapter 75-9, Laws of Florida, now codified in Chapter 768, Florida Statutes. Part of this legislative package included the creation of the Fund. This legislation was passed in response to a medical malpractice insurance crisis which arose when the primary underwriter for the Florida Medical Association sought to stop issuing medical malpractice policies in Florida, thus making it difficult, if not impossible, for physicians or hospitals to obtain medical malpractice insurance coverage at reasonable rates. As a result of this problem, many physicians began to practice defensive medicine, curtail or abandon their practices or practice without coverage of any kind.
The Fund is a private not-for-profit organization, participation in which is totally voluntary for its member-health care providers. Insofar as Petitioners are concerned, membership in the Fund is but one of several options available to provide legally required evidence of financial responsibility in order to obtain licensure as a hospital facility in Florida. Physicians, hospitals, health maintenance organizations and ambulatory surgical centers who
become members of the Fund must maintain at least $100,000 in primary professional liability insurance. Membership in the Fund grants to each participant a limitation of liability above the $100,000 in primary coverage. To the extent that any settlement or judgment exceeds the primary coverage of the participant, it is paid by the Fund without limitation.
The Fund is operated subject to the supervision and approval of a board of governors whose membership is required by law to consist of representatives of the insurance industry, the legal and medical professions, physicians' insurers, hospitals, hospitals' insurers and the general public. The Department is charged by statute with certain regulatory functions concerning the Fund.
The base fee for Fund membership is set by statute at $500 for physicians, after an initial $1,000 enrollment fee for the first year of participation, and at
$300 per bed for hospital members. The statute requires the Department to set additional fees based upon the classifications of health care providers contained in the statute. In the event that base fees are insufficient to pay all claims asserted against the Fund for a given fund year, the Department is empowered, upon request of the Board of Governors of the Fund, to order additional assessments against Fund participants to meet any such deficiency.
Under the original legislation, all classes of health care providers could be assessed unlimited amounts to make up any deficiencies. As a result of legislative amendments which became effective July 1, 1976, the amount which participants, other than hospitals, could be assessed was limited to the amount each Fund member had paid to join the Fund for that particular coverage year.
1976 legislative amendments also required that each fiscal year of the Fund, which runs from July 1 through June 30, be operated independently of preceding fiscal years, and further required that occurrences giving rise to claims in a particular fund year be paid only from fees or investment income on those fees collected for that particular year. Thus, it is entirely possible for the Fund to experience deficits in a given year, and yet hold surplus funds for other years.
On September 22, 1982, the Department of Insurance issued a "Notice of Assessment for 1976-77 Fiscal Fund Year" and a "Notice of Assessment for 1979-80 Fiscal Fund Year" (hereinafter called the "Notice of Assessment").
The Notice of Assessment for the 1976-77 fund year announced that the Insurance Commissioner intended to levy and authorized the Fund to collect an assessment in the amount of $2,395,092 from those health care providers that were members of the Fund in fund year 1976-77.
The Notice of Assessment for the 1979-80 fund year announced that the Insurance Commissioner intended to levy and authorized the Fund to collect an assessment in the amount of $16,268,997 from health care providers that were members of the Fund in fund year 1979-80.
Each of the hospitals named as Petitioners in the Petition for Administrative Proceedings in Case Nos. 82-3128 and 82-3130 were members of the Florida Patient's Compensation Fund during the fund year 1976-77.
Each of the hospitals named as Petitioners in the Petition for Administrative Proceedings in Case Nos. 82-3129 and 82-3130 were members of the Florida Patient's Compensation Fund during the fund year 1979-80.
Each of the hospital Petitioners who were members of the Florida Patient's Compensation Fund in the fund years 1976-77 and 1979-80 paid a base fee of $300.00 per bed for participation in the Fund.
The Department has never promulgated any rules pursuant to Section
768.54 and Chapter 120, Florida Statutes, pertaining to its regulation of or duties in conjunction with the Fund.
The chart below contains the following information concerning fund years 1976-77 and 1979-80:
the amount of the total proposed assessment described in the Notices of Assessment (dated September 22, 1982);
the amount of the losses experienced by doctors and hospitals, respectively;
the amount of the fees paid by doctors and hospitals;
the amount of the assessments for doctors and hospitals as described in the Notices of Assessment (dated September 22, 1982); and
the amount of the additional assessments sought by the Fund at the final hearing on February 14, 1983.
1976-1977 Fund Year - Total Assessment $2,395,092
DOCTORS | HOSPITALS | |
Losses $8,235,261 | Losses | $2,358,457 |
Fees Paid 1,888,258 | Fees Paid | 4,449,442 |
Assessments 1,888,258 | Assessments | 496,479 |
Addt'l Assessments -0- | Addt'l Assessments | 1,581,541 |
1979-1980 Fund Year - Total Assessment $16,268,997
DOCTORS | HOSPITALS | ||
Losses | $16,565,196 | Losses | $ 8,171,883 |
Fees Paid | 3,361,682 | Fees Paid | 5,995,934 |
Assessments | 3,681,682 | Assessments | 12,413,616 |
Addt'l Assessments -0- Addt'l Assessments 3,655,809
The following chart shows the comparison, by dollar amount and percentage, of the fees paid by each class of health care provider, the losses incurred by each class of health care provider and the surplus or deficit created by each class of health care provider for the fund Year 1976-1977:
FUND YEAR 1976-1977
SURPLUS/
FEES PAID LOSS INCURRED (DEFICIT)
Class I Phy. | $788,495 | 12.3* | $1,925,000 | 18.2* | ($1,136,505) |
Class II Phy. | 74,887 | 1.2 | 200,000 | 1.9 | (125,113) |
Class III Phy. | 1,024,876 | 15.9 | 6,110,261 | 57.6 | (5,085,385) |
Pro. Assoc. | 87,436 | 1.4 | 10,000 | 0.1 | 77,436 |
Hospitals | 4,449,442 | 69.1 | 2,358,457 | 22.2 | 2,090,985 |
Amb. Surg. | 5,359 | 0.1 | 0 | 0 | 5,359 |
HMO's | 0 | 0 | 0 | 0 | 0 |
TOTAL *percent | $6,430,495 | 100.0* | $10,603,718 | 100.0* | $(4,173,223) |
The following chart shows the comparison, by dollar amount and percentage, of the fees paid by each class of health care provider, the losses incurred by each class of health care provider and the surplus or deficit created by each class of health care provider for the fund year 1979-1980:
FUND YEAR 1979-1980
SURPLUS-
FEES PAID LOSS INCURRED (DEFICIT)
Class I Phy. $ 860,170 | 8.8* | $3,223,194 | 13.0* | ($ 2,363,024) |
Class II Phy. 876,207 | 8.9 | 994,475 | 4.0 | (118,268) |
Class III Phy. 1,625,305 | 16.6 | 12,347,500 | 50.0 | (10,722,195) |
Prof. Assoc. 403,947 | 4.1 | 0 | 0 | 403,947 |
Hospitals 5,995,934 | 61.1 | 8,171,883 | 33.0 | (2,175,949) |
Amb. Surg. 28,151 | 0.3 | 0 | 0 | 0 |
HMO's 15,180 | 0.2 | 0 | 0 | 0 |
TOTAL $ 9,804,894 *percent | 100.0* | $24,737,052 | 100.0* | $(14,975,489) |
The Department computed the portion of the assessment to be paid by the different classes of health care providers for the 1976-1977 and 1979-1980 fund years based upon an "indicated rate method". This method is represented by the following formula:
The Department started with the actuarially indicated rate for each class of health care provider as described in the October, 1981 Actuarial Report prepared by Tillinghast, Nelson, et al. This is called the "indicated rate by class."
The Department then applied the following formula for each class:
Indicated Rate by Class x No. of Members in the Class Total = indicated fees by Class
Total Indicated Fees by Class divided by Total Indicated Fees for ALL Classes = Percentage of Indicated Fee by Class
Percentage of Indicated Fee by Class x Total Expected Loss for ALL Classes = Expected Loss by Class
(Expected loss is ALL losses for the fund year including claims previously paid, reserves established on claims asserted and IBNR (incurred but not reported).)
Expected Loss by Class - Actual Fees paid by Class = Potential Loss Assessment by Class.
Potential Loss Assessment by Class divided by Potential Loss Assessment for ALL Classes = Percentage of Potential Loss Assessment by Class.
Percentage of Potential Loss Assessment by Class x Total Assessment to be Ordered by the DOI = Amount of Assessment by Class.
The "indicated rate method" for allocating assessments among the various classes of health care providers was selected by the Department as the method which most fairly reflected the classifications prescribed in Section 768.54(3)(c), Florida Statutes. The record in this proceeding establishes that this method is the most feasible mechanism for fairly reflecting classifications established by statute, and, at the same time, providing immediate funds necessary to meet all claims against the Fund.
The Notices of Assessment issued by the Department of Insurance for fund years 1976-77 and 1979-80 allocated the "excess assessments" (which could not be applied to physician members based upon the Department's "statutory cap" interpretation) among the other classes of health care providers based upon their percentage of "expected losses".
The charts below show the amount each class of health care provider would have been assessed under the "indicated rate method" absent the "statutory cap" for the fund years 1976-77 and 1979-80 and compares that amount to the assessment described in the 1976-77 and 1979-80 Notices of Assessment:
1976-1977 FUND YEAR
INDICATED RATE ASSESSMENT | ACTUAL ASSESSMENT |
a) Class I Physicians $ 106,792 | $ 788,495 |
b) Class II Physicians 34,712 | 74,887 |
c) Class III Physicians 2,253,588 | 1,024,876 |
d) Hospitals -0- | 496,479 |
e) HMO -0- | -0- |
f) Surgical Centers -0- | 597 |
g) Professional Association -0- | 9,758 |
1979-1980 FUND YEAR
INDICATED RATE ASSESSMENT | ACTUAL ASSESSMENT |
a) Class I Physicians $1,388,234 | $ 860,170 |
b) Class II Physicians 1,389,633 | 876,207 |
c) Class III Physicians 9,997,395 | 1,625,305 |
d) Hospitals 3,251,180 | 12,413,616 |
e) HMO 8,232 | 31,442 |
f) Surgical Centers 15,277 | 58,310 |
g) Professional Association 219,046 | 403,947 |
The difference between the results derived by the "indicated rate method" and the amounts reflected in the Notices of Assessment is due to the application of the statutory cap on assessments against physician members, as applied by the Department.
As a result of the application of the statutory cap, physician members of the Fund will not be assessed for fund years 1976-1977 and 1979-1980 in any amounts greater than those in the Notices of Assessment dated September 22, 1982.
The amounts of the assessments sought by the Fund, and described in the Notices of Assessment, were calculated by the Fund by using the following formula:
Total fees paid during the Fund Year
+Investment Income attributable to the Fund Year
-Expenses allocated to that Fund Year
-Amount paid on claims for that Fund Year
-Amount reserved for all known claims for that Fund Year.
The Department conducted no independent actuarial study regarding fees for fund years 1976-77 and 1979-80.
The fees ordered by the Department and collected by the Fund plus the interest income generated by such fees for fund years 1976-77 and 1979-80 have proven to be inadequate to cover claims against the Fund for those years.
For fund years 1976-77 and 1979-80, the Fund did not seek to have the Department of Insurance increase fees for any classes of health care providers.
The only fees set for or collected from physician and hospital members for the fund year 1976-77 were the statutory base fees.
For the 1979-1980 year the statutory base fee was charged to all hospital health care providers. The base fee was also charged physician health care providers; however this base fee was modified by the application of relativities according to each physician's class and territory. This application resulted in the following additional fee charges or credits which generated an additional $775,000 in fees:
NO SURGERY CLASS 1 | MINOR SURGERY CLASS 2 | SURGERY CLASS 3 | |
Territory 01 | |||
Dade and Broward | 0 | 250 | 500 |
Counties |
Territory 02
Remainder of State 88cr 117 323
The Fund requires as part of its regular course of business that all health care providers sign a membership application whereby the health care provider agrees to pay all fees and assessments charged or levied against it. Notice describing the fees to be charged is included with the membership application. All members of the Fund, including Petitioners, for the 1976-1977 and the 1979-1980 fund years signed such agreements. In addition, all health care providers were sent notice of the fee changes made for the 1979-1980 fund year.
Petitioners, for purposes of this proceeding, do not contest: (a) the method by which the Fund establishes reserves; (b) the amount of the reserves established for any individual claim file; or (c) the amount of the total deficit described in the Notices of Assessment dated September 22, 1982 for fund years 1976-77 and 1979-80. Nonetheless, Petitioners do not concede that the Fund needs all of the money described in the Notices of Assessment dated September 22, 1982 for fund years 1976-77 and 1979-80 at this time.
At the final hearing, the Fund contended that it should be allowed to levy and collect assessments from the hospitals for amounts in excess of the assessments described in the Notices of Assessment. To support this contention, the Fund introduced a "Monthly Financial Report" dated December 31, 1982 prepared by the Fund's staff. The Monthly Financial Report purportedly shows the Fund's deficit for the 1976-1977 and 1979-1980 fund years as of December 31, 1982. However, the report itself contains an express disclaimer stating that the report was "Unaudited -- Prepared For Managerial Purposes Only."
The Fund's Board of Governors has always in the past reviewed and approved any calculations concerning an alleged deficit before a deficit is certified to the Commissioner. The Fund then submits a written request to the Department for an assessment. In this case, the Board of Governors has not certified any amount to the Commissioner other than the amounts described in the Notices of Assessment dated September 22, 1982.
The record in this cause establishes that as of September 22, 1982, there existed a deficiency in the Fund's account for the 1976-1977 fund year of
$2,395,092 for the payment of settlements, final judgments and reserves on existing and known claims.
The record in this cause establishes that as of September 22, 1982, there existed a deficiency in the Fund's account for the 1979-1980 fund year of
$16,268,997 for the payment of settlements, final judgments and reserves on existing and known claims.
In view of the statutory cap on the amounts that may be assessed against physician members of the Fund, the foregoing dollar amounts for assessments for the 1976-1977 and 1979-1980 fund years, and the manner in which they are proposed to be allocated among the remaining classes of health care providers are appropriate.
Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 768.54(3)(c), Florida Statutes, which governs the imposition of fees and assessments by the Fund, provides in pertinent part as follows:
Annually, each health care provider, as set forth in subsection (2), electing to comply with paragraph (2)(b) shall pay the fees established under this act, for deposit into the fund, which shall be remitted for deposit in a manner prescribed by the Insurance Commissioner. The limitation of liability provided by the fund shall begin July 1, 1975, and run thereafter on a fiscal-year basis.
For the first year of membership, each participating health care provider shall pay a base fee for deposit into the fund in the amount of $1,000 for any individual, or $300 per bed for any hospital. Those entering the fund after the fiscal year has begun shall pay a prorated share of the yearly fees for a prorated membership. The base fee charged after the first year of participation shall be
$500 for any individual, or $300 per bed for any hospital. . .In addition, after the first year of operation, additional fees may be charged but shall be appropriately prorated for the portion of the year for which the health care provider participated in the fund, based on the following considerations:
Past and prospective loss and expense experience in different types of practice and in different geographical areas within the state;
The prior claims experience of the member covered under the fund; and
Risk factors for persons who are retired, semi-retired, or part-time professionals.
Such base fees may be adjusted downward for any fiscal year in which a lesser amount would be adequate and in which the additional fee would not be necessary to maintain the solvency of the fund. Such additional fee shall be based on not more than two
geographical areas with three categories of practice and with categories which contemplate separate risk ratings for hospitals, for health maintenance organizations, for ambulatory surgical facilities, and for other medical facilities. Each fiscal year of the fund shall operate independently of preceding fiscal years. Participants shall only be liable for assessments for claims from years
during which they were members of the fund. . . The fund shall be maintained at not more than
$15,000,000 per fiscal year. Additional fees, assessments, or refunds shall be set by the Insurance Commissioner after consultation with the board of governors of the fund. . .If the fund determines that the amount of money in an account for a given fiscal year is in excess of or not sufficient to satisfy the claims made against the account, the fund shall certify the amount of the projected excess or insufficiency to the Insurance Commissioner and request the Insurance Commissioner to levy an assessment against or refund to all participants in the fund for that fiscal year, prorated, based on the number of days of participation during the year in question.
The Insurance Commissioner shall order such refund to, or levy such assessment against, such participants in amounts that fairly reflect the classifications prescribed above and are sufficient to obtain the money necessary to meet all claims for said fiscal year. In no case shall any assessment for a particular year against any health care provider, other than those health care providers defined in subparagraphs (1)(b) 1., 5., 6., and 7., exceed an amount equal to the fees originally paid by such health care provider for participation in the fund for the year giving rise to such assessment.
(Emphasis is added.)
The above-quoted statutes provide the Fund with three mechanisms to obtain moneys with which to operate: "base" fees; "additional" fees; and "assessments." At all times material hereto, the amount of base fees was specifically set by statute at $1,000 for the first year and $500 for subsequent years for physician members, and $300 per bed for hospital participants. The 1976 Legislature amended Section 768.54(3)(c), Florida Statutes, to prohibit any "assessment" against physicians, osteopaths, and podiatrists from exceeding the membership fees paid for the year giving rise to the assessment. It is specifically concluded, as a matter of law, that this amendment imposed a "cumulative" cap on the liability of physicians, osteopaths, and podiatrists, so that those participants are liable only for a maximum of either $1,000 or $500 in assessments, depending upon whether the year in question was their first year or a subsequent year of participation in the Fund. See, Southeast Volusia Hospital District, et al., and Tallahassee Memorial Regional Medical Center, et al., v. State of Florida, Department of Insurance and Florida Patient's
Compensation Fund, D.O.A.H. Case Nos. 82-530 and and 82-776 (June 22, 1982).
The 1976 legislative amendments became effective July 1, 1976, which was also the first day of coverage for the 1976-1977 fund year. Notwithstanding the fact that some health care providers might have transmitted moneys for membership to the Fund prior to July 1, 1976, it is further concluded that since coverage for the 1976-1977 fund year did not begin until July 1, 1976, the effective date of the 1976 legislative amendments, those amendments apply to all health care providers for that fund year, regardless of the date on which they submitted membership fees to the Fund.
The Petitioners have asserted that the levying of "additional fees" pursuant to Section 768.54(3)(c), Florida Statutes, is a condition precedent to the collection of "assessments," so that Fund's request for the levying of assessments for 1976-1977 and 1979-1980 fund years should be denied. It is, however, specifically concluded that, based upon the entire legislative history of Section 768.54(3)(c), Florida Statutes, the Legislature intended that "additional fees" were to be utilized to adjust the amount of "base as upward prior to or at the beginning of a fund year, rather than as a condition precedent to the retrospective levying of "assessments" to cover insufficiencies in an account for a given fiscal year. Both the legislative history and the plain language of the statute support this conclusion for, since "additional fees" contain no statutory ceiling, to accept Petitioners' construction of the statute would render meaningless the "statutory cap" imposed by the Legislature in 1976 on amounts of assessments payable by physicians, osteopaths, and podiatrists.
The record in this proceeding affirmatively establishes that the amounts certified for fund years 1976-1977 and 1979-1980 dated September 22, 1982, "fairly reflect" the statutory classification contained in Section 768.54, Florida Statutes; that the amounts reflected therein are necessary to meet the claims made against the Fund for the fund years in question; and that the procedures used by the Department in spreading the assessments among the various health care providers in light of the aforementioned "statutory cap" are appropriate. To the extent that Petitioners have questioned the amount of "base fees" established for these fund years, their complaints are not determinable in this proceeding. At the latest, the Petitioners were given a reasonable "point of entry" into the Section 120.57, Florida Statutes, process at the time base fees were levied for the 1976-1977 and 1979-1980 fiscal years of the Fund, and Petitioners' failure to contest the amount of those base fees at the time they were levied constitutes a waiver of their ability to challenge those fees.
Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a Final Order be entered by the Department of Insurance levying assessments in accordance with the Notices of Assessment dated September 22, 1982, for the fund years 1976-1977 and 1979-1980.
IT IS FURTHER RECOMMENDED that the Fund's request to assess further amounts accruing between September 22, 1982, and December 31, 1982, be denied for failure to comply with the procedural requirements of Section 768.54, Florida Statutes.
IT IS FURTHER RECOMMENDED that the Department's Final Order grant the Fund's motion to dismiss Case Nos. 82-3122, 82-3124, 82-3126, 82-3127, and 82-
3136.
DONE AND ENTERED this 22nd day of April, 1983, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1983.
COPIES FURNISHED:
Aurea R. Tomeski, M.D. Suite 200
900 Northwest 31 Street Boca Raton, Florida 33432
Anthony Korvas, D.O.
8371 North West 21st Street Sunrise, Florida 33322
Ben H. Wilkinson, Esquire Post Office Box 3985 Tallahassee, Florida 32303
C. Bruce Hill, Esquire ADAMS & HILL
1200 Hartford Building
200 East Robinson Street Orlando, Florida 32801
Peter Winders, Esquire Martha J. Cook, Esquire David S. Dee, Esquire
CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A.
Post Office Drawer 190 Tallahassee, Florida 32302
John D. Buchanan, Jr., Esquire Post Office Drawer 1049 Tallahassee, Florida 32302
Vincent S. Conti, M.D. 2201 Middle River Drive
Fort Lauderdale, Florida 33305
Ronald L. Spielman, M.D., P.A. 1688 Meridian Avenue
Miami Beach, Florida 33139
Gustave F. Bieber, M.D. 2824 Valencia Way
Fort Myers, Florida 33901
David A. Yon, Esquire Department of Insurance 315-B Larson Building
Tallahassee, Florida 32301
Richard B. Collins, Esquire Suite 702
Lewis State Bank Building Tallahassee, Florida 32301
Kenneth G. Oertel, Esquire OERTEL & HOFFMAN, P.A.
646 Lewis state Bank Bldg. Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Apr. 22, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 22, 1983 | Recommended Order | Petitioners cannot challenge base fees for malpractice fund when time has run out. Fund may not assess special fees for failure to comply with statute. |
