STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FAIRPAY SOLUTIONS; TECHONOLOGY ) INSURANCE COMPANY, INC.; AND ) ASSOCIATED INDUSTRIES INSURANCE ) SERVICES, INC., )

)

Petitioners, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent, )

)

and )

)

GALENCARE, INC., d/b/a ) NORTHSIDE HOSPITAL AND HEART ) INSTITUTE, )

)

Intervenors. )

Case No. 06-1261

)

RECOMMENDED ORDER OF DISMISSAL

This cause comes before the undersigned on a "Motion to Relinquish Jurisdiction to the Agency for Health Care Administration for entry of Final Order." The Petitioners oppose the Motion. The Agency has joined in the Motion. A final hearing on the merits of the Petitions was scheduled for July 13- 14, 2006. During a hearing on the Petitioners' Motion for Continuance, however, it was agreed by the parties that a continuance was appropriate and that the hearing scheduled should be converted to a hearing on the Motion to Relinquish. A

hearing was therefore held on the Motion on July 14, 2006. The

undersigned has considered the Motion, the Response thereto and the oral arguments and legal authorities advanced by the parties.

This case arose upon the filing of a Petition by the above- named intervenor requesting resolution of a disputed amount of billing it had submitted to the Petitioners with regard to medical services provided a workers' compensation claimant. It contended that it was under-reimbursed for these services and filed a petition with the Respondent Agency pursuant to Section 440.13(7)(a), Florida Statutes.

A determination on the reimbursement request was made by the Agency by a Determination Order entered February 10, 2006.

Within 21-days after entry of that Determination the Petition disputing the reimbursement determination was filed and ultimately transmitted to the Division of Administrative Hearings.

As recited in the Agency's Determination Order the insurance carrier Petitioner, named above, filed no response or relevant documentation directed to the Intervenor's Petition before the Agency seeking the reimbursement request. Because the Petition before the Agency was thus undisputed, and based upon its reimbursement manual, the Agency determined that an improper adjustment of payment to the Intervenor had been made by the carrier. The Agency therefore ordered the reimbursement amount requested by the Intervenor hospital paid by the carrier, based

on the rule-mandated percentage of the hospital's customary charges.

It is undisputed that no response and documentation was filed before the Agency in opposition to the Intervenor's Petition within 10 days of the filing of the Intervenor's Petition before the Agency, or at any time since. It is also undisputed that Fairpay Solutions Incorporated and Associated Industries Insurance Services, Inc., (Fairpay) and (AIIS) are not obligated themselves to pay any amount of reimbursement due to the Intervenor, but rather such is the obligation of the Petitioner insurance carrier, Technology Insurance Company, Inc., (TIC).

Section 440.13(7), Florida Statutes (2005), governing the resolution of disputes between healthcare providers and carriers concerning billings for medical services and adjustments of payments by carriers, provides in pertinent part as follows:

1. Any health care provider . . . who elects to contest the disallowance or adjustment for payment by a carrier under subsection (6) must, within 30 days after receipt of notice of disallowance or adjustment of payment, petition the agency to resolve the dispute. The petitioner must serve a copy of the Petition on the carrier and on all affected parties by certified mail. The Petition must be accompanied by all documents and records that support the allegations contained in the Petition. Failure of a Petitioner to submit such documentation to the agency results in dismissal of the Petition.

   
   

2. The carrier must submit to the agency within 10 days after receipt of the Petition

   all documentation substantiating the carrier's disallowance or adjustment. Failure of the carrier to timely submit the requested documentation to the agency within 10 days constitutes a waiver of all objections to the petition.

   
   

3. Within 60 days after receipt of all documentation, the agency must provide to the Petitioner, the carrier, and the affected parties a written determination of whether the carrier properly adjusted or disallowed payment. The agency must be guided by standards and policies set forth in this chapter, including all applicable reimbursement schedules, practice parameters, and protocol of treatment, in rendering its determination. . . . (Emphasis supplied).

In light of Section 440.13(7)(b), Florida Statutes, the essential issue to be decided with regard to this Motion becomes whether the failure by the employer/carrier to respond to the Intervenor's Petition to the Agency is a jurisdictional failure such that there can be no jurisdiction (and, ipso facto, no disputed material fact) before the Division of Administrative Hearings. Resolution of this questions embodies a consideration of whether Section 440.13(7)(b), Florida Statutes, is a "non- claim statute" or, alternatively, whether it should be deemed a statute of limitations, which does not operate as an absolute jurisdictional bar in a self-executing way, but rather must be raised in the nature of an affirmative defense.

Research by the undersigned has revealed no cases in which Section 440.13(7)(b), Florida Statutes, has been construed regarding this context. The parties have not cited any case law construing that provision. Thus the issue raised by the Motion

is likely one of first impression. The cases cited and provided at the Motion hearing involve situations where the carrier did respond to a Petition or were, at best, analogous cases, construing different statutes, offered on the question of whether Section 440.13(7)(b), Florida Statutes, is a jurisdictional bar, in the case of the carrier's failure to submit documentation in response to the Petition.

Other cases may be looked to for guidance however, even though none have been found which directly construe Section 440.13(7)(b), Florida Statutes. Thus, the Florida Supreme Court has clearly held that a 60 day time period in Section 194.171(2), Florida Statutes, (a statute concerning challenges to ad valorem tax assessments) must be strictly enforced as a jurisdictional non-claim statute rather than a statute of limitations. See Markham v. Neptune Hollywood Beach Club, 527 So. 2d 814 (Fla.

1988). The difference between the two types of statutes is that a statute of limitations bars untimely claims only when a party asserts its operation as an affirmative defense while a statute of non-claim contains a condition precedent which operates as an automatic bar to untimely claims. See Thames v. Jackson, 598 So. 2d 121, 123 (Fla. 1st DCA 1992). One must look to the plain and ordinary meaning of the actual statutory language in order to see if that language on its face contains a bar to a party proceeding further if the terms in that statutory language are not complied with.

In this connection, if all we were confronted with was the first sentence in subparagraph (b): "the carrier must submit to the agency within 10 days after receipt of the Petition all documentation substantiating the carrier's disallowance or adjustment," then such language might be deemed to only require a 10-day time limit on filing, without being deemed to contain any automatic penalty to a party from further proceeding with its claim if it violated the 10-day time limit. This would relegate the opposing party to the use of the 10-day time limit as an affirmative defense, in the nature of a statute of limitation.

However, in the case of the statute at issue, the Legislature, in drafting it, saw fit to add the second sentence, underlined above, containing the added stricture that failure of the carrier to submit the requested documentation within 10 days ". . . constitutes a waiver of all objections to the petition." This language clearly contains within it a stated penalty for violation of the 10-day time limit in the form of a waiver, i.e., a relinquishment of all right to oppose the subject petition.

This language by the Legislature in its plain and ordinary meaning constitutes a condition precedent and a bar to the claim if a carrier fails to timely submit the required documentation within 10-days. As such this is clearly a non-claim statute rather than a mere statute of limitation. A non-claim statute, by barring a claim or a proceeding on a claim in such self- executing way is clearly jurisdictional.

Thus the agency could have had no jurisdiction to consider the Petitioner's claim while the matter was before the Agency and derivatively neither can the Division of Administrative Hearings have jurisdiction. The second sentence of Section 440.13(7)(b), Florida Statutes quoted above is clearly a condition precedent imposed by the Legislature on a carrier proceeding on its claim when it has failed timely to respond to the Petition. By stating that such a failure constitutes a waiver of all objections to the Petition the Legislature clearly meant that such a failure would extinguish the claim and thus be a jurisdictional impediment to the Agency considering any disputed factual or legal issues in opposition to the Petition.

Therefore, since a jurisdictional pre-requisite had not been met, there was not a dispute before AHCA and, even though Chapter 120.57(1), provides a point of entry to contest the Agency action involved, there can be no jurisdiction to decide the factual and legal issues raised by the Petitions, because, by jurisdictional operation of law there can be no disputed issues of material fact or law. With no disputed issues of material fact there is no jurisdiction before the Division of Administrative Hearings, in accordance with Section 120.57(1), Florida Statutes. The Petitioners having no justiciable issues of material fact, can have no substantial interest standing.

Although it is not necessary to determine whether Fairpay and AIIS are parties with standing in this proceeding because of

the above ruling, it should be pointed out that under the statutory provisions cited and discussed above, the insurance carrier is the entity ultimately responsible for the payment of any monies determined to be due by the Agency. Although AIIS and Fairpay may contract with the employer and carrier to service workers' compensation claims and to provide review services, advice, and consultation concerning provider billings, neither of those entities will be required to pay over any monies ultimately determined to be due the Intervenor. Therefore, it cannot be seen that they have any "injury in fact" of a sufficiently substantial nature as to trigger their standing. Moreover, although the statutory scheme of Chapter 440, Florida Statutes, as pertinent hereto, providing for review of provider billings and determination of proper provider reimbursement, includes allowance of the right of such servicing and consulting entities to contract with employer/carriers, it is undisputed in this proceeding that there is no issue raised to implicate any detriment to the right of these or similar entities to contract with employers and carriers for this purpose. Therefore, it must be determined that the zone of interests protected by the relevant provisions of Chapter 440, Florida Statutes, as germane to this proceeding, does not provide protection for the interests, asserted by the Petitioners Fairpay and AIIS regarding their ability to enter into arrangements to provide such consulting, bill review, and claims servicing functions, but

rather, Section 440.13(7), Florida Statutes creates a zone of interests whereby the carrier's substantial interest in not paying out excessive or inappropriate reimbursement amounts can be protected (if it timely asserts its rights). Thus the interest asserted by the Petitioners Fairpay and AIIS do not fall within a zone of interests protected by Section 440.13(7), Florida Statutes. Accardi v. Dept. of Environmental Protection, 824 So. 2d 992 (4th DCA 2002) and Ameristeel Corp. v. Clark, 691 So. 2d 473, 477 (Fla. 1999). Accordingly, being advised in the premises, it is

RECOMMENDED: That jurisdiction is hereby relinquished to the referring agency for entry of a final order consistent with its determination of February 10, 2006, and that the Petition filed herein be dismissed.

DONE AND ORDERED this 7th day of August 2006, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2006.

COPIES FURNISHED:

Joanna Daniels, Esquire

Agency for Health Care Administration Workers' Compensation Medical Services

200 East Gaines Street Tallahassee, Florida 32399-4229

Tamela I. Perdue, Esquire Stiles, Taylor & Grace, P.A. Post Office Box 1140 Tallahassee, Florida 32301

Stephen A. Ecenia, Esquire Rutledge, Ecenia, Purnell &

Hoffman, P.A.

215 South Monroe Street, Suite 420 Post Office Box 551

Tallahassee, Florida 32302-0551

Docket for Case No: 06-001261

Orders for Case No: 06-001261