STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRUM RESOURCES, )

)

Petitioner, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent, )

)

and )

) WEST FLORIDA REGIONAL MEDICAL ) CENTER, INC. d/b/a WEST FLORIDA ) HOSPITAL, )

)

Intervenor. )

Case No. 06-4096

)

RECOMMENDED ORDER OF DISMISSAL

Intervenor, West Florida Hospital, filed a Motion to Relinquish Jurisdiction to Agency for Health Care Administration for Entry of Final Order, on December 4, 2006, in which Respondent, Agency for Health Care Administration (Agency) joined.

Petitioner, Crum Resources, opposed the motion and filed a response, to which Intervenor replied. A hearing was held on the Motion on January 17, 2007. Petitioner's Motions to Continue and to Abate were also considered. Respondent and Intervenor requested and received the right to file a written

response to Petitioner's Motions, which was filed on January 18, 2007. The undersigned has considered the various motions, the responses thereto, and the oral arguments of the parties, and it is

FOUND AND DETERMINED:

1. This case arose by the filing of a Petition for reimbursement dispute resolution by Intervenor, West Florida Regional Medical Center, Inc. d/b/a West Florida Hospital (West Florida), on March 30, 2006, pursuant to Subsection 440.13(7)(a), Florida Statutes (2006).1 The Agency dismissed the petition without prejudice, and West Florida re-filed its Petition with a detailed bill attached.

2. The Agency issued a Determination on the reimbursement request on August 30, 2006. The Agency determined that the Petition was properly served on the carrier (Crum Services, Inc.), pursuant to Subsection 440.13(7)(a), Florida Statutes, and that Petitioner's insurance carrier did not respond to the Petition within ten days following receipt of the Petition. Therefore, the Agency determined that the carrier waived all objections to the Petition pursuant to Subsection 440.13(7)(b), Florida Statutes.

3. Petitioner filed a Petition for Administrative Hearing and an Amended Petition, seeking a formal hearing under Section

   120.569 and Subsection 120.57(1), Florida Statutes. The case

   was then referred to the Division of Administrative Hearings (DOAH) on or about October 17, 2006.

4. During the motion hearing, Petitioner acknowledged that the carrier did not submit a response to the Petition within the ten-day period as required by Subsection 440.13(7)(b), Florida Statutes.

5. Subsection 440.13(7), Florida Statutes, reads in pertinent part as follows:

   (7) Utilization and Reimbursement Disputes.

   1. Any health care provider, carrier, or employer who elects to contest the disallowance or adjustment of 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 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 documents to the agency within 10 days constitutes a waiver of all objections to the petition. (Emphasis supplied)

   
   

6. The Agency cited, as authority orders issued in three cases recently before the DOAH: Fairpay Solutions, Technology

   Insurance Company, Inc., and Associated Industries Insurance

   Services, Inc., v. AHCA, Case Nos. 06-1261 and 06-1274 (DOAH Recommended Orders of Dismissal, August 7, 2006; Agency Final Order rendered on both cases, September 14, 2006, which adopted the Recommend Order in toto), and Fairpay Solutions, Broadspire Services, Inc., and Crum Services v. AHCA, DOAH Case No. 06-1463 (Order Closing File, July 18, 2006, Agency Final Order rendered on August 14, 2006).

7. In each case, the provider filed and properly served a Petition in accordance with Subsection 440.13(7)(a), Florida Statutes, but no response was timely filed pursuant to Subsection 440.13(7)(b), Florida Statutes.

8. Petitioner, in its reply, cited as authority Gopman v.

   
   

   Department of Education, 908 So. 2d 1118 (Fla. 1st DCA 2005). Gopman is factually distinguishable from the instant case in that the Agency did not refuse Petitioner's request for an administrative hearing. This case was referred to the DOAH, at which a hearing took place concerning whether the Agency's preliminary finding, that Petitioner's claims are barred, was correct. In Petitioner's Motion to Abate, Petitioner cites Mednet Connect, Inc., et al. v. Agency for Health Care Administration, Case No. 04-2978 (DOAH, August 9, 2006; Final Order rendered on January 4, 2007, which rejected the Recommended Order in its entirety). This case is on point.

9. Fairplay Solutions, et al. v. Agency for Health Care Administration, DOAH Case No. 06-1463, is presently on appeal to the First District Court of Appeal, Case No. 1D06-4653, and Mednet Connect, Inc., et al. v. Agency for Health Care Administration, DOAH Case No. 04-2978, is also on appeal to the First District, Case No. 1D07-378.

10. Although the undersigned Administrative Law Judge has read each of the orders in the above-cited cases and finds merit in each of them, it is not necessary, for the disposition of this matter, to agree or disagree with a specific position. The Agency has clearly taken the position that the failure of the carrier to respond to the Petition within ten days is a jurisdictional failure, in that the language of Subsection 440.13(7)(b), Florida Statutes, is clear that it operates as a self-executing statute of non-claim. Further, the Final Orders entered on DOAH Case Nos. 06-1261 and 06-1264 were not appealed, and the time for filing an appeal has expired. Therefore, the Agency's position on this issue is the law of this case.

Because this issue is dispositive of Intervenor's Motion, it is not necessary to address the other grounds asserted in Intervenor's Motion, nor in Petitioner's Motions to Continue and to Abate.2

Accordingly, it is

RECOMMENDED:

1. That the Agency for Health Care Administration enter a final order dismissing the Petition for failure to meet the required timelines of Subsection 440.13(7)(b), Florida Statutes.

2. The final hearing in this cause scheduled for February 13 and 14, 2007, is hereby canceled.

3. The file of the Division of Administrative Hearings in the above-captioned matter is hereby closed.

DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 31st day of January, 2007.

ENDNOTES

1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.

2/ In light of this disposition, the Motion to Continue and Motion to Abate are denied.

COPIES FURNISHED:

Joanna Daniels, Esquire

Agency for Health Care Administration Workers' Compensation Medical Services

200 East Gaines Street Tallahassee, Florida 32399-4229

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

Hoffman, P.A.

215 South Monroe Street, Suite 420 Post Office Box 551

Tallahassee, Florida 32302-0551

Tamela L. Perdue, Esquire Timothy L. Newhall, Esquire Stiles, Taylor & Grace, P.A. Post Office Box 1140 Tallahassee, Florida 32302-1140

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Craig Smith, General Counsel

Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

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: 06-004096

Orders for Case No: 06-004096