STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN MEMORIAL HEALTH SYSTEMS, )

)

Petitioner, )

)

vs. ) Case No. 10-1172

) FLORIDA DEPARTMENT OF FINANCIAL ) SERVICES, DIVISION OF WORKERS’ ) COMPENSATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on May 4, 2010, by video teleconference at sites in Port St. Lucie and Tallahassee, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Brian F. LaBovick, Esquire

LaBovick & LaBovick, P.A. 5220 Hood Road, Second Floor

Palm Beach Gardens, Florida 33418

For Respondent: Mari H. McCully, Esquire

Department of Financial Services Division of Workers' Compensation

200 East Gaines Street Tallahassee, Florida 32399-4229

STATEMENT OF THE ISSUE

Whether the Florida Department of Financial Services, Division of Workers’ Compensation (Respondent) should enter a final order dismissing the Petition for Resolution of Reimbursement (Petition for Resolution) filed by Martin Memorial Health Systems (Petitioner). If the Petition for Resolution should not be dismissed, whether Guarantee Insurance Company (the Carrier) improperly disallowed reimbursement owed to Petitioner for services Petitioner rendered to an injured employee/claimant and the amount thereof.

PRELIMINARY STATEMENT

Petitioner filed a Petition for Resolution of Reimbursement Dispute (Petition for Resolution) with Respondent pursuant to the provisions of Section 440.13(7), Florida Statutes (2009).

Thereafter, Respondent notified Petitioner by its Notice of Deficiency that the Petition for Resolution was deficient and required Petitioner to supplement its Petition for Resolution within ten calendar days of Petitioner’s receipt of the Notice of Deficiency. Petitioner responded to the Notice of Deficiency, but the response was not received or postmarked within the ten calendar-day period. Thereafter, Respondent entered what is styled “Workers’ Compensation Medical Services Reimbursement Dispute Dismissal.” Petitioner thereafter requested a formal administrative hearing to challenge the

dismissal of its Petition for Reimbursement and to determine the appropriate amount of the reimbursement.

Respondent notified the Carrier of this matter, which provided the Carrier with a point of entry in this proceeding. The Carrier has made no appearance in this proceeding.

On April 29, 2010, the parties filed a pleading styled “Joint Pre-Hearing Statement and Filing of Exhibits,” which contain agreed facts, agreed conclusions of law, and identified

12 joint exhibits.

At the final hearing, the stipulated facts were accepted and all 12 exhibits were admitted into evidence. Petitioner presented the testimony of Karen Kennedy, who is Petitioner’s employee responsible for submitting workers’ compensation claims of Respondent.

No transcript of the hearing has been filed. Petitioner and Respondent timely filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order. These Orders reflect that the parties are in agreement as to the material facts and as to the disposition of this proceeding.

FINDINGS OF FACT

1. Paragraphs 1–38 of the Agreed Facts and Conclusions of Law set forth in the Joint Pre-Hearing Statement and Filing of Exhibits are hereby incorporated by reference.

2. The Notice of Deficiency issued by Respondent should not have been issued because the Petition for Reimbursement was complete when filed. Respondent has no basis to dismiss the Petition for Reimbursement.

3. Petitioner provided medical services to an employee that had workers' compensation insurance coverage from the Carrier. The usual and customary charges for the services at issue in this proceeding totaled $61,111.09.

4. The Carrier paid Petitioner the sum of $9,135.52 based on the Carrier’s determination that the charges should be based on inpatient treatment on a per diem basis.

5. The greater weight of the evidence establishes that the services to the injured employee should be billed under the category “outpatient surgery” pursuant to the pre-admission authorization provided to Petitioner.

6. Respondent has duly adopted rules that govern billing limitations. The parties agree that outpatient surgery, such as the services at issue in this proceeding should be reimbursed at

   60 percent of the usual and customary charges.

   
   

7. Petitioner is entitled to reimbursement from the Carrier in the amount of $36,666.65, which is 60 percent of

   $61,111.09. The Carrier should be credited with having paid the sum of $9,135.52, so the additional amount of the reimbursement due to Petitioner from the Carrier is $27,531.13 ($36,666.65 less $9,135.52) plus any applicable interest.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).

9. This is a de novo proceeding designed to formulate final agency action. See Hamilton County Bd. of County Com’rs v. State Dep’t. Environmental Reg., 587 So. 2d 1378 (Fla. 1st DCA 1991) and § 120.57(1)(k), Fla. Stat.

10. As the party seeking reimbursement, Petitioner has the burden of proving its entitlement thereto by a preponderance of the evidence. See Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health & Rehabilitative Services, 348 So. 2d

    349 (Fla. 1st DCA 1977).

    
    

11. A “preponderance” of the evidence means the greater weight of the evidence. See Fireman's Fund Indemnity Co. v. Perry, 5 So. 2d 862 (Fla. 1942).

    
    

12. Petitioner established by a preponderance of the evidence that its Petition for Reimbursement was complete when submitted and that the subsequent Notice of Deficiency and Dismissal were improperly issued.

13. Petitioner established by a preponderance of the evidence that it is entitled to reimbursement from the Carrier in the additional amount of $27,531.13 plus any applicable interest.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services enter a final order ordering the Carrier to reimburse Petitioner, Martin Memorial Hospital, in the additional amount of $27,531.13 plus any applicable interest.

DONE AND ENTERED this 20th day of May, 2010, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 20th day of May, 2010.

COPIES FURNISHED:

Karen Kennedy

Martin Memorial Health Systems Post Office Box 9010

Stuart, Florida 34995

Mari H. McCully, Esquire Department of Financial Services

Division of Workers` Compensation

200 East Gaines Street Tallahassee, Florida 32399-4229

Brian F. LaBovick, Esquire LaBovick & LaBovick, P.A. 5220 Hood Road, Second Floor

Palm Beach Gardens, Florida 33418

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

200 East Gaines Street Tallahassee, Florida 32399-0390

Honorable Alex Sink Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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: 10-001172

Orders for Case No: 10-001172