STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERTA RUBIN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5643

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF STATE EMPLOYEES' ) INSURANCE, )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in

this case at Miami, Florida, on January 10, 1992, before Michael

1. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

   
   

   For Petitioner: Robert C. Tilghman, Esquire

   Proenza, White, Huck & Roberts, P.A. Seventh Floor, Grove Plaza

   2900 Middle Street

   Miami, Florida 33133

   
   

   For Respondent: John M. Carlson, Esquire

   Department of Administration

   438 Carlton Building Tallahassee, Florida 32399-1550

   
   

   STATEMENT OF THE ISSUES

   
   

   The basic issue in this case concerns the scope of the coverage provided by the State of Florida Employees Group Health Self Insurance Plan ("State Plan"). The Petitioner incurred extensive expenses for medical treatment, some of which have been paid by the State Plan. The Petitioner contends that under the State Plan, specifically under the "extended coverage" portion of the State Plan, she is entitled to more than has already been paid. The Respondent contends that the correct amount has already been paid.

   
   

   PRELIMINARY STATEMENT

   
   

   At the final hearing, Roberta Rubin was represented by counsel and testified on her own behalf. Petitioner also presented the testimony of Sara Hampton of Blue Cross Blue Shield of Florida, Inc. and Petitioner's treating physician, Dr. Neil Rosenshein, both by way of deposition. Petitioner presented Exhibits number 1 through 7 which were admitted into evidence.

   The Respondent was also represented by counsel and called one

   witness, William Seaton, Chief of the Bureau of Benefit Programs. Petitioner and Respondent entered Joint Exhibits number 1 through

   7 into evidence.

   
   

   At the conclusion of the final hearing the parties

   agreed to a period of two weeks within which to further depose Ms. Sara Hampton if either party so desired. Ms. Hampton was not deposed during this two-week period and thus her deposition as submitted, including her Affidavit of Changes, is in evidence in its entirety. The parties also agreed at the hearing that the proposed recommended orders would be submitted on or before

   February 10, 1992. This deadline was later extended to February 21, 1992, upon the agreement of parties.

   
   

   All parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the parties are contained in the Appendix hereto.

   
   

   FINDINGS OF FACT

   
   

   1. The State of Florida makes available to its officers and employees several group insurance programs. With regard to group health insurance, the available programs include the State of Florida Employees Group Health Self Insurance Plan ("State Plan") and a number of different HMO's, depending upon the county in which an employee resides. Upon commencement of employment, State employees may elect to participate in the State Plan, may elect to join one of the HMO's in their geographical region, or may elect not to participate in any of the voluntary group insurance programs offered by the State. Employees who choose to participate in the State Plan are charged a premium which is normally deducted from their paychecks. The State also contributes regular amounts to pay a portion of the premium for each participating employee.

      
      

   2. Roberta Rubin has been an employee of the State of Florida for twelve years. She is currently employed as a judicial assistant to Circuit Court Judge George Orr.

      
      

   3. Roberta Rubin is an insured under the State of

      Florida Employees Group Health Self Insurance Plan ("State Plan"). The basic terms and conditions of the State Plan are set

      forth in a document titled State of Florida Employees Group Health Self Insurance Plan Benefit Document ("Benefit Document"). The version of the Benefit Document applicable to this case is the version amended effective July 1, 1988.

      
      

   4. The Department of Administration, Division of State

      Employees' Insurance, distributes a brochure titled Group Health Self Insurance Plan Benefits which describes the benefits under

      the State Plan and is intended to assist State employees in deciding which health insurance plan to select. The Department of Administration, Division of State Employees' Insurance, also distributes a brochure titled Group Health Self Insurance Plan Brochure ("Plan Brochure") to individuals enrolled for coverage under the State Plan. At page 1, the Plan Brochure describes the State Plan as follows: "This is a self-insured group health

      insurance program belonging to those State officers, employees, retirees, and their eligible dependents who elect to participate in the Plan." At the first unnumbered page inside the front cover of the Plan Brochure is a statement of the brochure's purpose, which includes the following:

      
      

      This brochure is not a contract since it does not include all of the provisions, definitions, benefits, exclusions and limitations of the State Self Insured Health Plan's Benefit Document, a copy of which is on file in your agency's personnel office.

      The purpose of this brochure is to furnish State officers and employees with a summary of the benefits available under the State Self Insured Health Plan. It is hoped that this brochure will answer any questions that might arise about the Plan.

      
      

   5. The State of Florida Employees Group Health Self Insurance Plan is administered by Blue Cross Blue Shield of Florida, Inc.

      
      

   6. In December of 1990, the Petitioner, Roberta Rubin, was diagnosed as having cervical cancer. The prognosis and recommended treatment provided by her treating physicians in

      Miami were not acceptable to Petitioner and she sought another opinion. Petitioner was referred to and ultimately treated by

      Dr. Neil Rosenshein, a gynecological oncologist at Johns Hopkins

      Hospital in Baltimore, Maryland. Dr. Rosenshein and Johns Hopkins Hospital are both "non-preferred patient care providers"

      within the meaning of the definitions in the Benefit Document.

      
      

   7. Dr. Rosenshein performed the following surgical procedures:

      
      

      1. radical abdominal hysterectomy;

      2. radical pelvic node dissection;

      3. bilateral commoniliac node dissection; and

      4. periaortic node dissection.

         
         

   8. The Physician's Procedural Terminology published by

      the American Medical Association ("PPT Code Book") assigns procedure codes to various surgical procedures that are utilized by billing physicians and various insurers. The PPT Code Book does not contain procedure codes that accurately reflect the latest technology or the complexity, intricacy, or radical nature of the procedures being performed in gynecological cancer surgery.

      
      

   9. Since no single or multiple procedure codes accurately characterized the surgical procedures performed by Dr. Rosenshein, his bill was submitted to Blue Cross Blue Shield of Florida, Inc., reflecting only one procedure code, 58210, with amodifier, "-22."

      
      

   10. The modifier "-22" is described in the 1986 version of the Approved Fee Schedule, of the State Plan, as follows:

       -22 UNUSUAL SERVICES: WHEN THE SERVICES PROVIDED ARE GREATER THAN THOSE USUALLY REQUIRED FOR THE LISTED PROCEDURE, IDENTIFY BY ADDING THIS MODIFIER -22 TO THE USUAL PROCEDURE NUMBER. LIST MODIFIED VALUE. REPORT MAY BE REQUIRED.

       
       

   11. However, the Benefit Document, as amended effective July 1, 1988, does not provide for or allow the use of the modifier "-22" in determining the amount of payment due on a claim even when the services provided are greater than those usually required for the listed procedure. The modifier "-22" is used by Blue Cross Blue Shield in the administration of other group health insurance plans.

       
       

   12. The claim form submitted by Dr. Rosenshein went through a level three review by Blue Cross Blue Shield of Florida, Inc., and in response to a request for additional information, Dr. Rosenshein submitted a letter explaining the nature of the procedures performed and a copy of the operative

       report. Following its review, Blue Cross Blue Shield of Florida, Inc., allowed payment only for the approved fee schedule amount for a single procedure code 58210, or $3,726.00.

       
       

   13. Dr. Rosenshein's uncontradicted testimony established that the most accurate representation of the procedures he performed would require the following three procedure codes:

       
       

       Code # Description

       58210 limited periaortic lymphadenectomy

       49201 extensive excision or destruction by any method of intra-abdominal retroperitoneal tumors

       or cysts or endometriomas

       38780 retroperitoneal transabdominal lymphade- nectomy, extensive, including pelvic, aortic and renal nodes.

       
       

   14. The approved fee schedule for these procedure codes allows the following amounts:

       
       

       Code #	Amounts
       58210	$3,726.00
       49201	2,683.00
       38780	2,764.00

       
       

   15. Petitioner has incurred the following bills in 1991 which are in excess of the applicable deductible and $1,500.00 out-of-pocket amount provided for under the Extended Coverage provisions of the benefit Document:

       
       

       Provider Amount

       JHU Department of Radiology $ 159.30 JHU Pain Management Anesthesia 698.10

       JHU Anesthesiology 507.70

       John Hopkins Hospital Outpatient 50.00

       JHU Department of Oncology 503.50

       JHU Cardiology	90.00
       JHU Pathology	230.00
       Dr. Neil Rosenshein	9,904.50
       Total	$12,143.10

       
       

   16. The amounts reflected above are exclusive of benefits already paid by Blue Cross Blue Shield of Florida, Inc., and other insurers and do not include any charges for room and board services or ambulance services.

       
       

   17. Section I of the Benefit Document contains definitions of numerous terms, including the following:

       
       

       D. "AFS" means the "Approved Fee Schedule," as approved or amended by the Department of Administration.

       1. "Covered provider" shall mean a person, institution, or facility as defined herein

          and who furnishes a covered service or supply.

       2. "Covered service or supply" shall mean a medically necessary service or supply furnished by a covered provider and which is covered by the Plan.

       Q. "Deductible" shall mean the dollar amount of covered services and supplies which each insured is required to pay before benefits

       are payable by the Plan.

       BA. "Preferred Patient Care Fee Schedule" or "PPC Fee Schedule" means a list of allowances for each service which has been set and agreed to by the preferred patient care providers.

       BB. "Preferred Patient Care Provider" or "PPC Provider" means a physician or hospital which has an agreement with the Administrator to provide health care services at set fees to individuals insured under the Plan. A non-preferred patient care provider does not have such an agreement.

       BJ. "Reasonable Charge" shall mean the following:

       1. an average of the amounts charged by the non-preferred patient care hospital, skilled nursing facility, hospice facility or birth center facility for services to individuals using such hospital or facility, as determined by the Administrator; or

       2. the charge set forth in the AFS for covered medical-surgical services.

       BS. "Usual, Customary and Reasonable" or "UCR" means a schedule of fees for covered services in a geographical area which is determined by the Administrator based upon

       1. the normal amount charged by the provider in his/her practice, (b) the range of fees for most providers in an area for the same service, and (c) any unusual circumstances or

complications requiring additional time, skills and experience by the provider which can be documented.

1. Section II of the Benefit Document contains the provisions regarding coverage for hospital and other facility services. That section reads as follows, in pertinent part:

   
   

   The following services shall be covered when ordered by a physician a nd are medically necessary for the treatment of an insured as a result of a covered accident or illness.

   1. Non-Preferred Patient Care Hospital Inpatient Room and Board Services:

      1. When confined to a semi-private or private room or ward, 80% of the hospital's average semi-private room rate shall be paid but not to exceed an actual payment of one- hundred and fifty-two ($152.00) per day.

   2. Other Covered Non-Preferred Patient Care Inpatient Services:

      80% of the actual charge for the following services will be paid by the Plan:

      1. Use of operating room, labor room, delivery room and recovery room;

      2. All drugs and medicines used by the patient while confined in the hospital, provided such drugs and medicines are listed in "New and Non-Official Remedies" or the "United States Pharmacopoeia";

      3. Solutions (including glucose);

      4. Dressings;

      5. Anesthesia and related supplies;

      6. Oxygen therapy;

      7. Transfusion supplies and services including blood, blood plasma and serum albumin, if not replaced;

      8. Laboratory services;

      9. Electrocardiograms;

      10. Basal metabolism examinations;

      11. X-ray, including therapy;

      12. Electroencephalograms;

      13. Diathermy and physical therapy.

   3. Covered Outpatient Hospital, Ambulatory Surgical Center or Outpatient Health Care Facility Services:

      Ninety percent (90%) of the reasonable charge shall be paid for covered outpatient services provided by a Non-PPC provider. When such services are provided by a PPC provider, the plan shall pay ninety percent (90%) of the charge subject to the PPC fee schedule limits.

   4. Covered Clinical Laboratory Services: Ninety percent (90%) of the charge for covered clinical laboratory services shall be paid by the Plan not to exceed the maximum amount permitted under the AFS.

   
   

2. Section III of the Benefit Document contains the provisions regarding coverage for medical-surgical services. That section reads as follows, in pertinent part:

   
   

   A. Ninety percent (90%) of the charge for medically necessary inpatient/outpatient services provided to an insured by a non- preferred patient care physician, physical therapist or nurse anesthetist for the treatment of the insured as a result of a covered accident or illness shall be paid by the Plan, subject to the provisions of Section VI and Section XXIII; however, such payment shall not exceed the maximum amount permitted under the AFS.

   C. If a covered procedure does not have a specified fee listed in the AFS, pricing will be performed by the Administrator in accordance with its normal procedures.

   
   

3. Section V of the Benefit Document, titled "Extended Coverage," contains the provisions regarding what is commonly

   known as the "stop loss" feature of the plan. That section reads as follows, in pertinent part:

   
   

   1. If under individual or family coverage, the out-of-pocket expenses of an insured for covered services under Section II., Section III., Section IV and Section XXV amount to

      one thousand five hundred dollars ($1500.00) during a calendar year, all further covered charges for such services incurred by the insured during the remainder of the calendar year shall be paid by the Plan at one hundred percent (100%), subject to the lifetime maximum and the maximum payments listed in paragraph C. below.

   2. If under family coverage, the out-of- pocket expenses of two or more insureds for covered services under Section II., Section III., Section IV. and Section XXV. amount to three thousand dollars ($3000.00) during a calendar year, all further covered charges for such services incurred by any insured during the remainder of the calendar year shall be paid at one hundred percent (100%), subject to the lifetime maximum and the maximum payments listed in paragraph C. below.

   3. Maximum payments subject to Subsections

      1. A. and B. above shall apply only to room

         and board services under Subsection II A., Subsection II E., Subsection II G., and ambulance services under Section IV, as follows:

         1. One hundred and ninety dollars ($190.00) per day for hospital room and board;

         2. Ninety-five dollars ($95.00) per day for room and board in a skilled nursing facility;

         3. Three hundred and eighty dollars ($380.00) per day for an intensive care unit;

         4. Two hundred and eighty-five dollars ($285.00) per day for a progressive care unit;

         5. One hundred and twenty-five dollars ($125.00) per use for ambulance service;

         6. One thousand dollars ($1000.00) for ambulance transportation of a newborn child;

         7. One hundred and ninety dollars ($190) per day for room and board in a specialty institution or residential facility.

   4. Charges for covered services and supplies applicable to the deductible(s) under the Plan shall not be considered an out-of-pocket expense under the provisions of Section V.

   
   

4. The brochure titled Group Health Self Insurance Plan Brochure contains the following language at page seven regarding the stop loss feature of the plan:

   
   

   Maximum Out-Of-Pocket Expense

   If, during a calendar year, the out-of-pocket expenses for one person insured under individual or family coverage amount to

   $1,500, or $3,000 for two or more persons insured under family coverage, all further charges will be paid at 100%, subject to the lifetime maximum, any allowance limits for room and board while confined to Non-PPC facilities, and ambulance transportation allowance limits for newborn children. This provision applies to all covered services except Hospice services; however, charges applicable to the deductible shall not be considered an out-of-pocket expense.

   
   

5. The language of Section V of the Benefit Document regarding "Extended Coverage" is ambiguous with regard to the scope of the coverage provided by that section of the benefit document. The language of Section V of the Benefit Document regarding "Extended Coverage" also conflicts with the language at page seven of the Plan Brochure regarding "Maximum Out-Of-Pocket Expense. /1

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

7. Although the Department argues that the State Plan should be treated otherwise, the courts have already concluded that the State Plan is the functional equivalent of an "insurance contract." See Ganson v. State, Department of Administration,

   554 So.2d 516 (Fla. 1st DCA 1989), at page 521. Such being the case, it follows naturally that the provisions of the State Plan

   should be construed in the same manner as the provisions of other insurance contracts. See Ganson, supra, at page 521, footnote 1. And the type of insurance contract that most resembles the State Plan, is, of course, a group insurance contract.

   
   

8. With regard to group insurance policies, it was

   noted in Equitable Life Assurance Society of the United States v. Wagoner, 269 So.2d 747 (Fla. 4th DCA 1972), that:

   
   

   As a practical matter, the certificate is the only document which the insured under a group life insurance policy ever sees. When the terms of the Certificate are in conflict with the provisions of the master policy a problem arises as to which should prevail. While the authorities are divided on the question, we believe the better view to be the one which holds that under group life insurance policies there is a contract between the insurer and the individual insured, that the contract consists of both the master policy and the certificate of insurance construed together, and that ambiguities or conflicts between the two must be resolved so as to provide the broadest coverage. (Emphasis in original.)

   
   

   In Rucks v. Old Republic Life Insurance Company, 345 So.2d 795 (Fla. 4th DCA 1977), the court quoted and followed the language from Wagoner, supra, quoted immediately above. The Rucks court also quoted with approval the following language from Evans v. Holly Corporation, 15 Cal. App.3d 1020, 93 Cal.Rptr 712 (Ct. of App. 2nd Dist. 1971):

   
   

   Where the representations in an insurance certificate indicate broader coverage than that provided by the master policy, the insurer is bound by the terms of the certificate.

   
   

   More recent cases have held that the conclusions reached in Wagoner, supra, and Rusks, supra, also apply to other types of insurance policies. See Autorico, Inc. v. Travelers Indemnity Company, 400 So.2d 164 (Fla. 3d DCA 1981); American States Insurance Company v. Dick's Crane Service, Inc., 399 So.2d 442

   (Fla. 5th DCA 1981); Government Employees Insurance Company v. Burak, 373 So.2d 89 (Fla. 3d DCA 1979).

   
   

9. The Benefit Document of the State Plan is the

   functional equivalent of the master policy in other group insurance arrangements. The brochure titled Group Health Self

   Insurance Plan Brochure is the functional equivalent of the "certificate of insurance" customarily issued to those who are insured under other group insurance arrangements. Accordingly, as in the case of other group insurance policies, the contract between the individual insureds and the State consists of both the Benefit Document and the brochure titled Group Health Self

   Insurance Plan Brochure, and, in the words of Wagoner, supra, "ambiguities or conflicts between the two must be resolved

   so as to provide the broadest coverage."

   
   

10. As noted in the findings of fact, the language of

    the "stop loss" provision at Section V of the Benefit Document is ambiguous. And as also noted in the findings of fact, there is a conflict between the language of Section V of the Benefit

    Document and the language at page seven of the Group Health Self Insurance Plan Brochure under the caption "Maximum Out-Of-Pocket

    Expense."

    
    

11. The ambiguity in the language of Section V of the Benefit Document lies first in the use of the undefined term "further covered charges." The nature of the ambiguity becomes evident upon consideration of the definition at paragraph O. of Section I of the Benefit Document, which reads: "`Covered service or supply' shall mean a medically necessary service or supply furnished by a covered provider and which is covered by the Plan." All of the services for which payment is sought in this case were medically necessary, were furnished by covered providers, and were covered by the Plan. Therefore, all of the services for which payment is sought in this case are "covered services" within the meaning of the definition last quoted /3 above. It follows inescapably that the charges for those services are charges for "covered services." And in the absence of definition or limitation providing otherwise, the most natural meaning to be given to the term "covered charges" is to construe the term to mean "charges for covered services," which is what the Petitioner seeks to recover here. The term "covered charges," as used in Section V of the Benefit Document, is also susceptible to other constructions, which susceptibility adds to, rather than detracts from, the conclusion that the language of Section V is ambiguous.

    
    

12. The ambiguity addressed immediately above is compounded when consideration is given to the expressly stated qualifications to the provision for payment at one hundred percent. Paragraph A. of Section V provides that following out- of-pocket expenses of one thousand five hundred dollars during a calendar year,

    
    

    all further covered charges for such services incurred by the insured during the remainder of the calendar year shall be paid

    by the Plan at one hundred percent (100%), subject to the lifetime maximum and the maximum payments listed in paragraph C. below.

    
    

    The most natural meaning to be given to the language quoted immediately above is that following the out-of-pocket threshold, the State Plan will pay one hundred percent of charges for the remainder of the calendar year subject to only two limitations or qualifications: (1) the lifetime maximum and (2) the payment caps itemized in paragraph C. of Section V of the Benefit document. The payment caps itemized in paragraph C. of Section V specifically mention only room and board services at certain facilities and ambulance services. /5 There being no other "maximum payments" itemized in paragraph C. of Section V, there is no basis for further limitation of the one hundred percent coverage provided by paragraph A. of Section V. /6

    
    

13. Even if it were possible to avoid the consequences of the ambiguity in the language of the "Extended Coverage"

provision of Section V of the Benefit Document, there remains a conflict between that language in the Benefit Document and the language at page 7 of the Plan Brochure under the caption "Maximum Out-Of-Pocket Expense." The Plan Brochure states, in relevant part, that, following the out-of-pocket threshold, "all further charges will be paid at 100%, subject to the lifetime maximum, any allowance limits for room and board while confined to Non-PPC facilities, and ambulance transportation allowance limits for newborn children." The primary conflict between the Plan Brochure and the Benefit Document is that in the Plan Brochure language the term "all further charges" is not qualified by the word "covered," as it is in the Benefit Document.

Therefore, there is no ambiguity in the subject language of the Plan Brochure; that language clearly and unequivocally states, "all further charges will be paid at 100%" with no qualifications or limitations other than the lifetime maximum and certain room and board and ambulance charges. The coverage described in the Plan Brochure is broad enough to encompass all of the charges for which the Petitioner seeks payment. As concluded in Equitable Life Assurance of the United States v. Waqoner, 269 So.2d 747 (Fla. 4th DCA 1972), the ambiguities and conflict discussed above

" . . . must be resolved so as to provide the broadest coverage." Accordingly, the Petitioner is entitled to recover the entire amount of her claim either as a result of the ambiguities in the "Extended Coverage" provisions of Section V of the Benefit Document or as a result of the conflict between those provisions and the language at page 7 of the Plan Brochure under the caption "Maximum Out-Of-Pocket Expense."

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Administration issue a Final Order to the following effect: (a) concluding that the "Extended Coverage" language of Section V of the Benefit Document is ambiguous; (b)

concluding that the "Extended Coverage" language of Section V of the Benefit Document is in conflict with the language at page 7 of the Plan Brochure under the caption "Maximum Out-Of-Pocket Expense;" (c) concluding that after the Petitioner's out-of- pocket expenses for covered services reached $1,500, she was entitled to have "all further charges" for covered services paid

at 100% of the amount of the charges except as specifically limited in paragraph

C. of Section V of the Benefit Document; and

(d) providing for payment in the total amount of $12,143.10 to the Petitioner or to the providers listed in paragraph 15 of the Findings of Fact.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22 of May 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 22 day of May 1992.

ENDNOTES

1/ The nature and effect of the ambiguity and conflict

are discussed at length in the Conclusions of Law portion of this Recommended Order.

2/ As noted in the findings of fact, the brochure titled Group Health Self Insurance Plan Brochure describes the State Plan as "a self-insured group health insurance program belonging to those State officers, employees, retirees, and their eligible dependents who elect to participate in the Plan." See also Section 110.123(3)(a), Florida Statutes (1991).

3/ The Department has not contended that any of the

services at issue here are not "covered services." To the contrary, the Department has accepted them as covered services as evidenced by the Department's payment of portions of the charges for the services at issue.

4/ The Department's witness, Mr. Seaton, described a

much more limited construction of the term "covered charges" as used in Section V of the Benefit Document. On the basis of Mr. Seaton's testimony it is clear that the Department intended for Section V of the Benefit Document to provide coverage somewhat narrower in scope than that sought by the Petitioner. But the Department's intent was ambiguously expressed in the Benefit Document, as well as in the Plan Brochure, and pursuant

to the cases discussed above, the Petitioner is entitled to have the ambiguity resolved in her favor. If it wishes to avoid the same result in future cases, the Department would be well advised to amend both the Benefit Document and the Plan Brochure and communicate the amendments to the individual insureds.

5/ The application of the express limitations in paragraph C. of Section V are not in dispute in this case. The Petitioner has accepted that those limitations were appropriately applied to her claim and has, accordingly, reduced the amount of her claim.

6/ In this regard it should be specifically noted that paragraph C. of Section V contains no mention of any limitation on the amount payable based on such provisions as the Approved Fee Schedule or the Preferred Patient Care Fee Schedule, or based on the concepts incorporated in the definitions of the terms "Reasonable Charge" or "Usual, Customary and Reasonable" charges.

Specific mention of these matters in paragraph C. of Section V would have gone a long way toward correction of the ambiguity in paragraph A. of Section V.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-5643

The following are my specific rulings on the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

The substance of all proposed findings submitted by the Petitioner has been accepted.

Findings proposed by Respondent:

Paragraphs 1, 2, and 3: Accepted in substance. Paragraph 4: Accepted as far as it goes, but

Dr. Rosenshein did more than is described in this paragraph. Paragraphs 5, 6, 7, 8, and 9: Accepted in substance.

Paragraph 10: The first sentence is accepted in

substance, with the exception of the "therefore," which raises an unwarranted inference. Second sentence is rejected as an incorrect interpretation of provisions of the subject insurance plan. Last sentence is rejected as an incorrect interpretation of provisions of the subject insurance plan.

Paragraph 11: Rejected as constituting a combination

of summary of testimony, incorrect interpretations of provisions of the subject insurance plan, and argument. (It is true that Mr. Seaton testified substantially as described in Paragraph 11, but the conclusions expressed in that testimony have been found to be incorrect.)

Paragraph 12: Rejected as constituting a conclusion that is contrary to the greater weight of the evidence. Paragraph 13: Rejected as constituting legal argument, rather than proposed findings of fact.

Paragraph 14: Rejected as constituting legal arguments

and conclusions of law, rather than proposed findings of fact.

Paragraph 15: All but last sentence is accepted in

substance. Last sentence is rejected as irrelevant or as subordinate and unnecessary details.

Paragraph 16: Accepted in substance.

Paragraph 17: First sentence rejected as unnecessary details. Second sentence accepted in substance.

Paragraph 18: Most of this paragraph has been rejected as irrelevant or as subordinate and unnecessary details. Paragraph 19: Accepted in substance.

Paragraph 20: Most of this paragraph has been rejected

as irrelevant, as subordinate and unnecessary details, or as argument, rather than proposed findings of fact.

COPIES FURNISHED:

Robert C. Tilghman, Esquire PROENZA, WHITE, HUCK & ROBERTS, P.A.

Seventh Floor, Grove Plaza 2900 Middle Street

Miami, Florida 33133

John M. Carlson, Esquire Department of Administration

438 Carlton Building Augustus D. Aikens, Jr. Tallahassee, Florida 32399-1550 General Counsel

Department of Administration

John A. Pieno, Secretary 435 Carlton Building Department of Administration Tallahassee, Florida 32399

435 Carlton Building Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-005643

Orders for Case No: 91-005643