STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EAST COAST SURGERY CENTER,

vs.

Petitioner,

Case No. 17-5837

DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was held in this case before the Honorable R. Bruce McKibben, Administrative Law Judge, by way of a video teleconference on December 18, 2017, with sites in Tallahassee and Daytona Beach,

Florida.

APPEARANCES

For Petitioner: Barbara T. Hernandez, pro se

East Coast Surgery Center 1871 LPGA Boulevard

Daytona Beach, Florida 32117

For Respondent: Taylor Anderson, Esquire

Thomas Nemecek, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be decided in this proceeding is whether the Reimbursement Dispute Dismissal issued by Respondent, Department

of Financial Services, Division of Workers’ Compensation (the “Department”), should be reversed due to equitable tolling or some other recognized excuse for untimely submission of the reimbursement dispute.

PRELIMINARY STATEMENT

A Reimbursement Dispute Dismissal was issued by the Department on or about September 9, 2017. Petitioner, East Coast Surgery Center, filed a request for formal administrative hearing on September 21, 2017, challenging the Department’s decision.

At the final hearing held in this matter, Petitioner was represented by its agent, Barbara Hernandez. Ms. Hernandez testified but offered no exhibits into evidence. The Department called one witness: Arlene Cotton, RN consultant. The Department’s Exhibits 1 through 3 were admitted into evidence.

A transcript of the final hearing was ordered. The Transcript was filed at the Division of Administrative Hearings on December 29, 2017. Proposed recommended orders (“PROs”) were due within 10 days after the Transcript was filed. Each party timely filed its PRO and each was duly considered in the drafting of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a business operating in Daytona Beach, Florida. The nature of Petitioner’s business was not made part of the record.

2. In approximately June 2017, Petitioner submitted a claim to the Department, claiming payment for certain (undisclosed) services or expenditures.

3. The Department issued an Explanation of Bill Review (“EOBR”) in response to Petitioner’s claim. The EOBR set forth the amount of reimbursement the Department would allow for Petitioner’s claim. The EOBR was received by Petitioner on July 10, 2017. Upon receipt of the EOBR, Petitioner had

   45 days, i.e., until August 24, 2017, to challenge the Department’s determination of the reimbursement amount.

4. Not satisfied that the amount allowed by the Department was correct, Petitioner challenged the determination by submitting a Petition for Resolution of Reimbursement Dispute (the “Petition”) on DFS Form 3160-0023. The Petition was signed on August 8, 2017. However, Petitioner did not immediately submit the Petition on that date, despite being aware of the

   45-day time limit for submitting such forms for relief.

   
   

5. Petitioner did not mail the Petition until August 25, 2017, one day after the deadline for doing so. The Certified

   
   

   Mail Receipt for Petitioner’s mailing is clear and unambiguous, clearly showing the date.

6. Petitioner did not present any evidence as to factors which might excuse the late filing of its Petition. The only reasons cited were that Petitioner was awaiting information from two claims management services, Sedgwick and Foresight, before submitting its Petition. Petitioner, through its witness at final hearing, admitted its error in failing to timely file the

   Petition.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 440.13, Fla. Stat. Unless stated otherwise herein, all references to Florida Statutes will be to the 2017 version.

8. Section 440.13(7), Florida Statutes, states in relevant part:

   1. Any health care provider who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 45 days after receipt of notice of disallowance or adjustment of payment, petition the department to resolve the dispute.

      
      

9. It is clear Petitioner did not submit its Petition within 45 days of receipt of the EOBR from the Department.

Thus, Petitioner has no legitimate legal basis for challenging the dismissal of its Petition.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Financial Services, Division of Workers’ Compensation, enter a Final Order upholding its Reimbursement Dispute Dismissal.

DONE AND ENTERED this 11th day of January, 2018, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2018.

COPIES FURNISHED:

Taylor Anderson, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399 (eServed)

Barbara T. Hernandez East Coast Surgery Center 1871 LPGA Boulevard

Daytona Beach, Florida 32117 (eServed)

Thomas Nemecek, Esquire Department of Financial Services Division of Workers' Compensation

200 East Gaines Street Tallahassee, Florida 32399 (eServed)

Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 17-005837

Orders for Case No: 17-005837