STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WAL-MART, INC., AND SEDGWICK CMS,
vs.
Petitioners,
Case No. 15-4303
DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION,
Respondent,
and
FLORIDA INSTITUTE FOR NEUROLOGIC REHABILITIATION AND FRUITVILLE HOLDINGS – OPPIDAN, INC.
Intervenors.
/
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on October 6, 2015, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge, in Tallahassee, Florida.
APPEARANCES
For Petitioners: James N. McConnaughhay, Esquire
David A. McCranie, Esquire McConnaughhay, Duffy, Coonrod, Pope,
Weaver, Stern & Thomas, P.A.
1709 Hermitage Boulevard, Suite 200
Tallahassee, Florida 33208
For Respondent: Cynthia L. Jakeman, Esquire
Department of Financial Services
200 East Gaines Street Tallahassee, Florida 32399-4229
For Intervenors: Daniel Hays Thompson, Esquire
Berger Singerman, LLP
125 South Gadsden Street, Suite 300 Tallahassee, Florida 323011/
STATEMENT OF THE ISSUES
The following are the issues presented:
Whether the Division of Administrative Hearings (“DOAH”) has jurisdiction to determine the claim of Petitioners Wal-Mart, Inc. (“Wal-Mart”) and Sedgwick CMS (“Sedgwick”) to relief under section 440.13(8) and (11), Florida Statutes;
If DOAH has jurisdiction, whether Petitioners have standing to raise the issue of medical overutilization;
If DOAH has jurisdiction and the Petitioners have standing, whether Petitioners are estopped from seeking reimbursement of any monies paid to Intervenors Florida Institute for Neurologic Rehabilitation (“FINR”) and Fruitville Holdings - Oppidan, Inc. (“Oppidan”);
If DOAH has jurisdiction and Petitioners have standing and are not estopped, whether Intervenors engaged in overutilization of medical care in their care and treatment of the injured worker, D.F.;
Whether Respondent, Department of Financial Services, Division of Workers’ Compensation (the “Department), has the
authority to order Intervenors to reimburse Petitioners for payments related to overutilization by Intervenors in the medical care of D.F.; and
If the Department has such authority, how much money should Intervenors be ordered to reimburse Petitioners.
PRELIMINARY STATEMENT
On April 13, 2015, Petitioners filed with the Department a Petition for Formal Administrative Hearing (the “Petition”) contesting the Department’s March 23, 2015, dismissal of Petitioners’ “Petition for Resolution of Reimbursement Dispute and for Utilization Review In Accordance With Section 440.13, Florida Statutes” (the “Reimbursement Petition”), which Petitioners originally filed with the Department on January 26, 2011.
On July 28, 2015, the Department forwarded the Petition to DOAH for the assignment of an administrative law judge and the conduct of a formal hearing. The final hearing was scheduled for October 6, 2015, on which date it was convened and completed.
On August 21, 2015, FINR and Oppidan filed a motion to intervene, which was granted by Order dated August 26, 2015.
At the hearing, Petitioners presented the testimony of Susan Smith, a claims adjuster for Sedgwick, and of Edward Louis Stern, an attorney for Petitioners in the workers’ compensation
matter involving injured worker, D.F. Petitioners’ Exhibits A through T were admitted into evidence.
The Department presented the testimony of Pamela Macon, bureau chief of the Bureau of Monitoring and Audit of the Division of Workers’ Compensation, and of Eric Lloyd, formerly program administrator of the Office of Medical Services in the aforementioned Bureau of Monitoring and Audit. The Department’s Exhibits 1 through 4 were admitted into evidence.
Intervenors presented the testimony of Elizabeth Rock, director of accounts receivable for FINR. Intervenors’ Exhibits 1, 8 through 12, and 16 through 24 were admitted into evidence.
The one-volume Transcript of the final hearing was filed at DOAH on October 28, 2015. Two extensions of the time for filing proposed recommended orders were granted. In accordance with the modified schedule, all parties timely filed their Proposed Recommended Orders on January 5, 2016.
Unless otherwise stated, all statutory references are to the 2010 edition of the Florida Statutes.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made:
The Department is the state agency responsible for administering the Workers’ Compensation Law, chapter 440, Florida Statutes. Section 440.13 governs the Department’s responsibilities and procedures for overseeing the provision by employers to their employees of “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment as provided for in this chapter ”
§ 440.13(2)(a), Fla. Stat.
Petitioner Wal-Mart is an “employer” as that term is defined in section 440.02(16). Petitioner Sedgwick acts as a workers' compensation servicing agent or “third party administrator” (“TPA”) for Wal-Mart and is a workers’ compensation “carrier” as defined in section 440.13(1)(c).
D.F. is an “employee” as that term is defined in section 440.02(15).
In 2003, during the course of his employment with Wal- Mart in Sarasota, D.F. fell approximately six feet from a ladder to the ground, landing on his left side and striking his head.
D.F. was diagnosed with a traumatic brain injury.
Through Sedgwick, Wal-Mart accepted the compensability of D.F.'s injuries under the law and began furnishing “medically
necessary treatment, care and attendance” to D.F. as required by section 440.13(2).
In the immediate aftermath of the accident, D.F. was treated at Sarasota Memorial Hospital, where he was diagnosed with cephalgia (headache), left flank contusion, and cervical strain. He was later seen at First Care in Sarasota with complaints of headache, and by a Dr. Barnea (no first name in the record) with complaints of headaches, dizziness, backaches, trouble with memory, and an inability to taste food.
D.F. was also seen by Dr. Hal Pineless, a neurologist at the Neurocare Institute of Central Florida, who diagnosed
D.F. with a cerebral concussion with post-concussive syndrome, post-concussive headaches, depression, and anosmia (loss of the sense of smell).
In January 2005, D.F. took a handful of pills in what was at least a suicidal gesture, if not a serious attempt to kill himself. He was admitted to the Halifax Medical Center, and a Baker Act2/ proceeding was initiated against him. Although
D.F. was found not to meet the criteria for involuntary hospitalization at that point, three months later he was referred by James Hutchens, his attorney, to Dr. Howard Goldman, a psychiatrist, because of the attorney's fear that D.F. would again attempt to harm himself.
In February 2007, D.F. was evaluated at FINR, an inpatient neurologic rehabilitation facility in Wauchula. FINR recommended inpatient treatment for D.F. at their facility for an initial period of 30 to 60 days. The cost of the treatment was set at $950 a day. Susan Smith was the Sedgwick claims adjuster assigned to D.F.’s claim. Relying on the expertise of the physicians at FINR, Ms. Smith agreed to the admission and the price.
Ms. Smith testified that when she took over the case, there were five physicians treating D.F., including a neurologist, a psychotherapist, a psychiatrist, and a physiatrist. The physicians were all requesting different courses of treatment and were prescribing medications that were in some instances contraindicated with each other. The physicians were not communicating with each other. D.F.’s case was “just a mess.” Ms. Smith stated that FINR seemed to present an opportunity for D.F. to receive all of his treatments in one place, with one physician in charge, in a coordinated fashion.
D.F. was admitted to FINR in March 2007. Dr. Jorge J. Villalba, the medical director of FINR, diagnosed D.F.'s medical conditions as post-traumatic headaches, anxiety, and depression.
FINR provided monthly reports of D.F.'s progress to Sedgwick. D.F.’s treatment was administered by a team of physicians at FINR and consisted of medical monitoring,
occupational therapy, physical therapy, and speech therapy.
D.F. was provided vocational rehabilitation in FINR’s computer lab and in the wood shop, where he worked on sanding, staining, and building wood products.
In August 2007, D.F. was transferred to Oppidan, an assisted living facility, as a “step down” in treatment from the inpatient FINR facility. Oppidan is affiliated with FINR, which does all of the billing for both entities. Again relying on the expertise of the physicians, Ms. Smith agreed to the transfer and to the $850 per day cost of care at Oppidan.
Oppidan provided monthly reports to Sedgwick similar to those provided by FINR. These reports, later characterized as "boilerplate" by the Department’s expert medical advisor, Dr. Matthew Imfeld, showed that D.F. was receiving treatment similar to that which he had received at FINR, i.e., medical monitoring, occupational therapy, physical therapy, speech therapy, and vocational therapy.
D.F. remained at Oppidan from August 2007 until August 2011, more than four years after his initial admission to FINR. Ms. Smith testified that she was in constant contact with the treatment facility and persistently inquired as to when D.F. would be ready for release from the facility. Ms. Smith noted a pattern in which D.F. would seem to improve to the point of discharge and then suffer some form of relapse or new symptom
that would preclude his discharge. Increased symptoms included complaints of personality changes, anxiety, syncopal episodes accompanied by frequent falls, medication adjustments, emotional withdrawal, suspected Parkinson's syndrome, ringworm, shoulder problems, ringing in the ears, and anhedonia.3/
Petitioners worked with Oppidan’s medical staff to determine conditions for D.F.’s discharge from Oppidan. On January 9, 2009, Petitioner’s then-counsel, Brian Bartley, discussed the situation with Dr. Villalba and Dr. Jeffrey Walden, D.F.’s neuropsychologist. They agreed that D.F.’s needs could potentially be met within an outpatient day program. At Mr. Bartley’s suggestion, Dr. Villalba and Dr. Walden investigated the Adult Daycare program at Manatee Glens, a behavioral health hospital with an outpatient component.
Though they rejected Manatee Glens as an appropriate placement, Drs. Villalba and Walden sent Mr. Bartley a letter, dated January 15, 2009, that outlined the components they felt necessary for an acceptable outpatient program:
[D.F.] requires comprehensive case management services to oversee his program, assist with making and following-up on appointments, assist in managing his benefits, and coordinate his care.
[D.F.] will require oversight of his medications. We feel that a home health nurse or, alternately, a nurse on site at a potential discharge site, would be necessary to provide for this need by packing his
medication box with him, assessing him for possible side effects, overseeing a schedule of routine labs, etc. His wife can assist with prompting him at his medication times as necessary during non-program hours, but we do not recommend that she have primary responsibility for managing his medications or medical status.
[D.F.] will require reliable transportation to and from his program and ancillary appointments. His wife will not be able to be his sole source of transportation.
First, the only licensed and tagged vehicle they own is an old van that has had multiple reliability issues. Second, his wife has her own ongoing medical concerns that may interfere with her capacity to provide reliable transportation even with a working vehicle.
[D.F.] requires activities that challenge him to be in the community and addressing his anxiety and panic symptoms. As such, a club-house model day program will be inadequate. He requires a vocational program where he is in a workplace, managing interpersonal relationships, and working on specified tasks. He has thus far been able to manage such assignments only with the assistance of a one-to-one job coach on the site with him and working at his side. As such, job coaching services will be required for all vocational hours.
[D.F.] requires community recreational activities to further challenge his capacity to cope and master anxiety-producing situations with less structure than a workplace. His present program addressed this need through one-to-one lunch outings, fishing trips, etc. During these activities, he is encouraged to use the coping strategies developed in his psychotherapy sessions to manage and persevere despite his debilitating anxiety.
[D.F.] requires a quiet place to which he can temporarily retreat and regroup between community-based activities. He can become overwhelmed in busy and chaotic environments such as a room with loud music or television playing, a busy game room, or an activity center. He has coping strategies he utilizes when he must be in such environments, but the availability of a place where he can escape such over- stimulation is required to facilitate his participation in his activities.
[D.F.] requires continued participation in weekly cognitive-behavioral psychotherapy. He also requires regular contact with a neurologist and a neuropsychiatrist. His current program includes massage therapy as well to address his shoulder and to assist with relaxation skills. He also receives assistance with the management of his personal budget, including development of
computer-based budgeting program, planning of future expenses and anticipated income, and development of financial priorities. He will require continued assistance in this area as well.
We hope this adequately describes the services we feel will be required to address [D.F.’s] needs in an outpatient environment. Please feel free to contact us with any comments or questions you may have. We will gladly review any proposed discharge site and offer our thoughts regarding the acceptability of such a site to meet his needs.
The record indicates that Mr. Bartley suggested at least one more potential discharge site to the medical staff at Oppidan. In a letter dated March 27, 2009, Drs. Villalba and Walden stopped short of rejecting this option outright but did set forth a list of concerns and requests for further
information regarding the details of the proposed treatment. The record does not indicate whether Mr. Bartley followed up on these concerns and requests, or whether Petitioners proposed another outpatient program for D.F.
By the time of D.F.’s discharge, FINR and Oppidan’s billed charges for his treatment totaled $1,451,301.27. Wal- Mart, through Sedgwick, paid these bills in full without disallowance, adjustment, or reduction. At all times relevant, Ms. Smith relied upon the expertise of the medical staff at FINR and Oppidan’s facilities confirming that the treatment being provided was medically necessary. Ms. Smith also understood that D.F. had been "Baker Acted" and feared that he might harm himself if Oppidan discharged him upon her disallowance of the charges for his treatment.
Though they continued paying the charges during D.F.’s stay at Oppidan, Petitioners noted the mounting costs and apparently endless course of treatment. Petitioners referred
D.F. to Glenn J. Larrabee, Ph.D., a diplomate in clinical neuropsychology, who examined D.F. on September 28 through 30 and October 5, 2009, and reviewed all of his available medical records.
Dr. Larrabee produced a 41-page report, dated November 9, 2009. The report concluded that D.F.’s medical records “suggest that at worst, he suffered a mild traumatic
brain injury of an uncomplicated nature, given normal CT Scan the day of injury and multiple subsequent normal CT Scans of the brain.” Dr. Larrabee noted that recovery from such an uncomplicated injury is usually three months at most and that
D.F. had no cognitive or emotional complaints in follow-up visits shortly after the injury. It was only a few weeks later that he displayed the symptoms of anosmia. Dr. Larrabee’s examination of D.F. showed “deliberate feigning of odor identification in the left nostril, with significantly worse- than-chance performance, strongly supporting the feigning of anosmia.”
Dr. Larrabee further noted evidence of normal neuropsychological test performance in D.F.’s initial neuropsychological evaluation with a Dr. Frank in early 2004, in a second neurological evaluation conducted by a Dr. Bosco in 2007, and in Dr. Larrabee’s own current examination. These results “strongly contradict the presence of any persistent deficit from his original mild traumatic brain injury.”
In each of these tests, Dr. Larrabee also noted “evidence of invalid test performance with failure of symptom validity tests and measures of response bias,” a further indication that D.F. was deliberately feigning responses.
Dr. Larrabee wrote that “[o]ther health care professionals have noted a motivational basis or non-neurologic basis to
symptomatic complaint.” Dr. Salter in 2005 included “factitious disorder” as one of his diagnoses, and Dr. Tatum noted that D.F. displayed seizures without any indication of actual epilepsy.
Dr. Larrabee concluded that, while there was “compelling evidence of malingering” on the neuropsychological examinations, other professionals have noted “significant personality disorder features” that could lead one to be dependent on the inpatient hospitalization setting.
Dr. Larrabee found that there could be “a mix of intentional (i.e., malingering) and unintentional (psychiatric) factors” in the case of D.F. He recommended a one-month stay in a psychiatric facility for evaluation and treatment. Without such hospitalization, it could not be determined whether D.F. had a legitimate psychiatric disorder or whether such disorder was a consequence of his workplace injury.
At about the same time as the referral to
Dr. Larrabee, Petitioners began to explore legal channels to procure D.F.’s discharge from Oppidan. Petitioners sent the case file to an attorney, Edward Louis Stern, who testified at the final hearing. Mr. Stern testified that he met with D.F.'s attorney for the purpose of obtaining his cooperation in having
D.F. discharged. Mr. Stern provided D.F.'s attorney with a copy of Dr. Larrabee’s report.
Mr. Stern stated that D.F.'s attorney agreed in principle to the discharge of D.F. but wanted to identify the parameters that would be allowed by FINR/Oppidan for his safe release. To this end, a meeting was set up for June 3, 2010, that included the program director at FINR, the treating neuropsychologist, a vocational consultant, D.F., D.F.'s spouse, and D.F.'s attorney. Mr. Stern reported that no one at the meeting was willing to definitively identify the parameters of D.F.'s discharge.
Mr. Stern left the meeting with the definite impression that D.F.’s attorney would not agree to D.F.’s discharge. He also believed that no one at the facility would be willing to identify parameters for discharge. Therefore, Mr. Stern and his clients decided to initiate formal overutilization proceedings based on peer review, pursuant to section 440.13(6).
Mr. Stern noted that peer review requires two or more "physicians" to make an evaluation of the care in question. Petitioners had in hand only the opinion of Dr. Larrabee, a neuropsychologist whose non-physician opinion would not be admissible before a Judge of Compensation Claims. After some negotiation, D.F.’s attorney agreed to an examination by a psychiatrist.
On September 3, 2010, Dr. R.J. Mignone, a board- certified psychiatrist practicing in Sarasota, evaluated D.F. at Petitioners' request. Dr. Mignone’s 35-page report included a detailed narrative of D.F.’s treatment history, Dr. Mignone’s examination, and his impressions and recommendations. In brief answers to a series of questions propounded by Petitioners,
Dr. Mignone concluded that D.F.'s industrial accident was not "the major contributing cause" for the psychiatric care he had been receiving at FINR/Oppidan. Dr. Mignone found no DSM-IV Axis I psychiatric injury to D.F. and concluded that D.F.’s treatment at FINR/Oppidan was actually "psychiatrically contraindicated."
Dr. Mignone concluded that it would be appropriate to discharge D.F. from Oppidan with the understanding that some regression should be expected once his “Axis II characteropathy” ceased to be reinforced by the inpatient setting. Dr. Mignone believed that D.F.'s medical professionals had been guilty of "walking on eggshells" in their treatment of him and that D.F.'s "acting out" behavior had been a major factor in FINR/Oppidan's program design. Dr. Mignone concluded that because D.F.’s condition was unrelated to his work injury, all of the treatment he had received at FINR and Oppidan constituted overutilization.
After a great deal more legal jockeying, a second peer review was performed by Dr. Thomas Goldschmidt on January 7,
2011. Dr. Goldschmidt is a specialist in neurology and psychiatry, and was specifically recommended by Dr. Mignone to perform an examination of D.F. However, because D.F.’s attorney declined to allow the examination, Dr. Goldschmidt’s opinion was based on his review of the medical record and Dr. Mignone’s evaluation. He summarized his findings as follows:
The claimant experienced MTBI [mild traumatic brain injury] on May 9, 2003. He reported loss of consciousness for seconds and was able to drive himself home afterwards. Serial evaluations over time have chronicled multiple normal CT brain scans, normal forty-eight hour EEG monitoring suggesting PNES [psychogenic nonepileptic seizures, i.e., seizures with a psychological cause], symptom exaggeration/malingering on neuropsychological testing, pertinacious somatic preoccupation with trait characterological disturbance consistent with passive-dependent underpinnings, and counter-therapeutic institutionalization at OPPIDAN. As such, the claimant’s clinical course has iatrogenically served to enhance his misguided perception of being “brain injured” in pursuit of satisfying his formidable but chronically frustrated dependency needs. Furthermore, his clinical course is atypical for MTBI and cannot be objectivity [sic] reconciled with the neuropsychological or clinical data provided for my review. From a non-organic perspective, the claimant has parlayed his seven year old MTBI into a state of invalidism largely facilitated by OPPIDAN. In effect, his illness-behavior has been iatrogenically perpetuated by reinforcing the notion of “brain injury” and treatment of psychogenic-mediated symptomatology unrelated to his 2003 work injury.
Negotiations continued and a private mediation resulted in a negotiated settlement between Petitioners and D.F. The parties agreed that Petitioners would no longer be responsible for workers’ compensation benefits as of the date the agreement was signed, though D.F. would continue to receive payments for lost wages and supplemental benefits. It was agreed that Petitioners would cease making payments to FINR/Oppidan on August 30, 2011, the date that D.F.’s residency would discontinue.
In light of Petitioners’ suspicions regarding D.F.’s possible malingering, it is reasonable to ask why they never disallowed or adjusted any of the bills generated by FINR/Oppidan’s treatment of D.F. Mr. Stern testified that Petitioners did not unilaterally disallow payment out of fear that FINR/Oppidan might retaliate against D.F. by immediately discharging him, thereby risking another suicide attempt and possible tort liability for Petitioners.4/ Petitioners also feared that unilateral disallowance of payments could negatively affect their ongoing negotiations with D.F.’s counsel regarding voluntary discharge from Oppidan.
On January 28, 2011, Petitioners filed the Reimbursement Petition with the Department, naming FINR and Oppidan as respondents and expressly disclaiming any direct reimbursement dispute with D.F. The Reimbursement Petition
recited the history of D.F.’s treatment. It did not name a specific instance of overutilization; rather, it stated that all of D.F.’s treatment by FINR and Oppidan constituted overutilization. The Reimbursement Petition requested that the Department, “in accordance with Section 440.13(6), Florida Statutes . . . disallow the payment of services previously paid by the Petitioner[s] and reimburse Petitioners all sums paid.” The Reimbursement Petition also requested the return of payments made by Petitioners in accordance with section 440.13(11)(a).5/
Attached to the Reimbursement Petition was a copy of DFS Form 3160-0023, entitled “Petition for Resolution of Reimbursement Dispute,” executed by Wal-Mart and Sedgwick. Just below the title of DFS Form 3160-0023 is the following statement: “A Petition for Resolution of Reimbursement Dispute must be served on the Agency within 30 days after the Petitioner’s receipt of a notice of disallowance or adjustment of payment, pursuant to 69L-31.008, Florida Administrative Code.” Section 440.13(7)(a) likewise provides, in relevant part:
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 department 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 department results in dismissal of the petition.
FINR and Oppidan filed a Motion to Dismiss the Reimbursement Petition arguing that jurisdiction for a reimbursement review can be invoked only where a medical bill has been disallowed or adjusted for payment. They further argued that Petitioners could not invoke the Department’s jurisdiction to conduct a mandatory utilization review under section 440.13(6) because of that subsection’s provision that if a carrier finds that overutilization of medical services has occurred, the carrier “must disallow or adjust payment for such services.” FINR/Oppidan argued that the dispute mechanism afforded a carrier under section 440.13 is limited to disallowing or adjusting a payment, which triggers the filing of a petition by the health care provider and a response from the carrier. Given that the Sedgwick did not disallow or adjust any payments, the Reimbursement Petition should be dismissed.
As a result of the Reimbursement Petition, the Department initiated an investigation of FINR/Oppidan and of Dr. Villalba individually as medical director of FINR/Oppidan pursuant to section 440.13(11). Eric Lloyd, who at the time was program administrator of the office of medical services in the
Division of Workers’ Compensation, testified that the Department did not then have a formalized method for reporting provider violations and that the language of 440.13(7) makes it clear that only a health care provider may pursue a petition for resolution of a reimbursement dispute. Mr. Lloyd stated that the Department therefore treated the Reimbursement Petition as a report of provider violation and converted the matter into a review under section 440.13(11).
Delays in the resolution of the audit were caused by the need to advertise for and contract the services of an Expert Medical Advisor (“EMA”) pursuant to section 440.13(9). The Department’s initial contracting efforts were futile. Two contracted EMAs disqualified themselves for conflicts of interest. The Department finally engaged the services of a certified EMA, Dr. Imfeld, a specialist in the field of physical medicine and rehabilitation.
Dr. Imfeld reviewed D.F.'s medical records from FINR/Oppidan, as well as the reports from the various doctors that were provided to the Department by the parties. Petitioners provided documents pursuant to a “Health Care Provider Violation Referral Document Request” issued by the Department on March 31, 2011, and a “Health Care Provider Violation Referral Document Request Addendum” issued by the
Department on April 4, 2011. Both documents required the carrier to submit various forms of documentation.
The Department’s initial document request states that the Reimbursement Petition alleged “that services rendered by Dr. Jorge Villalba, M.D. (hereinafter “Provider”), for the treatment rendered to the above referenced injured employee while an inpatient at FINR/OPPIDAN was in excess of established practice parameters and protocols of treatment established in Chapter 440, Florida Statutes.” In fact, the Reimbursement Petition made its allegations against FINR and Oppidan as institutions. Dr. Villalba was not mentioned by name in the Reimbursement Petition. The only reference to him was a statement that “[b]oth entities seemingly have the same medical director or attending physician.”
Pamela Macon, bureau chief of the bureau of monitoring and audit in the Division of Workers’ Compensation, conceded at the hearing that it was her office that decided to include
Dr. Villalba in the investigation because he was the medical director of the facilities. The language of the document requests plainly reflects an attempt to impute to Petitioners the Department’s own decision at the outset of the investigation to focus on Dr. Villalba individually.
The end result of the investigation was that charges were brought against Dr. Villalba, but not against FINR or
Oppidan as institutions. As explained more fully below, the case against Dr. Villalba was settled. No case was ever brought against the institutions. The following colloquy at the hearing is between Ms. Macon and counsel for Petitioners:
Q. And as I understand it, you added Dr. Villalba to the case because he would have been, as the medical director, responsible for any medical care that was provided within the facility and he then should be responsible?
A. Yes.
Q. That’s why you added him?
A. Correct.
Q. But then you changed your mind and determined that he wasn’t involved with it at all, so you weren’t going to give – you weren’t going to penalize him?
A. Right, that he didn’t render the direct care.
Q. Okay. Did you ever make a determination who did the direct care?
A. Not to my knowledge, no.
Mr. Lloyd testified as to a policy dispute within the agency as to whether a “health care provider” violation may be brought only against individual health care providers or whether a facility can also be found in violation and sanctioned. He acknowledged that the statutory term “health care provider” explicitly includes health care facilities, but cited the
difficulty involved in disciplining a facility such as FINR, which treats multiple injured workers. If the Department bars an entire facility, it would affect not just the individual injured worker whose treatment is in question but any others the facility is treating now or in the future.6/
In his report, dated August 12, 2013, Dr. Imfeld concluded that while D.F.'s 2003 accident resulted in a mild traumatic brain injury, it did not cause a seizure disorder or Parkinson's disease. He further concluded that all of the inpatient treatment from FINR/Oppidan was excessive and not medically necessary.
On September 23, 2013, the Department entered its “Report of Health Care Provider Investigation and Notice of Intent to Impose Penalties Pursuant to §440.13, F.S.”7/ The Notice of Intent was directed to Dr. Villalba individually and stated as follows, in relevant part:
The record in this matter, corroborated by the EMA opinion, evidences certain care that was neither medically necessary nor clinically appropriate for D.F.'s compensable condition. Accordingly, the Department finds that because of your role at FINR and OPPIDAN, you have directly or indirectly engaged in a pattern or practice of overutilization or a violation of Chapter 440, Florida Statutes, in the treatment rendered to D.F.
Dr. Villalba filed a Petition for Formal Administrative Hearing on October 7, 2013, in response to the Notice of Intent. The Department and Dr. Villalba agreed to hold the case in abeyance rather than forward it to DOAH. The case was ultimately settled, the parties entering into a Settlement Stipulation for Consent Order on May 13, 2014. The settlement provided that the Department would withdraw and dismiss its Notice of Intent and that Dr. Villalba would withdraw and dismiss his petition for an administrative hearing with prejudice.
Mr. Lloyd testified that after the Notice of Intent was filed against Dr. Villalba, the Department received a Recommended Order from an Administrative Law Judge in another DOAH case in which the Department had issued a Notice of Intent against an individual physician for overutilization. The Recommended Order was “pretty critical of the Department and the process that was involved,” and the Department felt obliged to enter a settlement for attorney’s fees. Mr. Lloyd testified that the Department believed Dr. Villalba’s case had “the same shortcomings” as that earlier case. Mr. Lloyd stated that this belief played a large role in the decision to settle with
Dr. Villalba in lieu of trying to prove a difficult case of overutilization in a formal proceeding.
Wal-Mart and Sedgwick were given no notice of the settlement negotiations or the entry of the Settlement Stipulation for Consent Order between the Department and
Dr. Villalba. Mr. Lloyd testified that there is no statutory obligation for the Department to apprise the complainant of the status of the Department’s investigations.
On March 23, 2015, the Department issued an order titled “Workers’ Compensation Medical Services Reimbursement Dispute Dismissal” that purported to dispose of the Reimbursement Petition filed by Wal-Mart and Sedgwick on January 28, 2011. The order provided as follows, in relevant part:
There is no information to suggest that Wal- Mart, Inc. or Sedgwick CMS discontinued authorization for treatment and care for [D.F.] by the Respondent herein during the specified dates of service.
* * *
The issues raised by Wal-Mart, Inc. and Sedgwick CMS are utilization review issues, not appropriate for resolution in reimbursement dispute resolution proceedings under section 440.13(7), Florida Statutes.
The utilization issues were resolved by the Department in its MSS Case No. ROV00039 and Department Case No. 143376 [i.e., the case against Dr. Villalba that was dismissed via Consent Order].
Therefore, this Petition for Resolution of Reimbursement Dispute in MMS Case No.
20110531-001 is hereby DISMISSED.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding, at least to the extent of determining subject matter jurisdiction. §§ 120.569 and 120.57(1), Fla. Stat.
Chapter 440, Florida Statutes, is the Workers’ Compensation Law, the purpose of which has been described as “to provide for employers a liability that is limited and determinative, and to employees a remedy that is both expeditious and independent of proof of fault.” Florida
Erection Servs., Inc. v. McDonald, 395 So. 2d 203, 209 (Fla. 1st DCA 1981). Section 440.015 sets forth the legislative intent as follows, in relevant part:
It is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer It
is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker. Therefore, an efficient and self-executing system must be created which is not an economic or administrative burden. The department, agency [for Health Care Administration], the Office of Insurance Regulation, the Department of Education, and the Division of Administrative Hearings shall administer the Workers’ Compensation Law in a manner which facilitates the self- execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.
This proceeding focuses on section 440.13, which establishes the regulatory structure for providers and carriers of medical and related services to injured employees. At issue is the Department’s application of section 440.13 to its utilization review responsibilities regarding the medical services that Intervenors provided to D.F.
Section 440.13(2) establishes the duty of an employer to “furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment as provided for in this chapter.” Section 440.13(3)(a) provides that a certified health care provider must receive authorization from the carrier before providing treatment to an injured employee.
Section 440.13(1) provides as follows, in relevant part:
(1) DEFINITIONS.— As used in this section, the term:
* * *
(k) “Instance of overutilization” means a specific inappropriate service or level of service provided to an injured employee that includes the provision of treatment in excess of established practice parameters
and protocols of treatment established in accordance with this chapter.
* * *
(o) “Pattern or practice of overutilization” means repetition of instances of overutilization within a specific medical case or multiple cases by a single health care provider.
* * *
(r) “Reimbursement dispute” means any disagreement between a health care provider or health care facility and carrier concerning payment for medical treatment.
* * *
(t) “Utilization review” means the evaluation of the appropriateness of both the level and the quality of health care and health services provided to a patient, including, but not limited to, evaluation of the appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. Such evaluation must be accomplished by means of a system that identifies the utilization of medical services based on practice parameters and protocols of treatment as provided for in this chapter.
Section 440.13(6), titled “Utilization Review,” places the responsibility upon carriers such as Sedgwick to review all claims for payment from healthcare providers to identify potential “overutilization and billing errors” and disallow or adjust payment, providing as follows in relevant part:
Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify
overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations
. . . . If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the department, if the carrier, in making its determination, has complied with this section and rules adopted by the department.
Section 440.20 is titled, “Time for payment of compensation and medical bills; penalties for late payment.” Section 440.20(2)(b) provides as follows:
The carrier must pay, disallow, or deny all medical, dental, pharmacy, and hospital bills submitted to the carrier in accordance with department rule no later than 45 calendar days after the carrier’s receipt of the bill.[8/]
Section 440.13(7), titled “Utilization and Reimbursement Disputes,” provides as follows:
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 department 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 department results in dismissal of the petition.
The carrier must submit to the department 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 department within 10 days constitutes a waiver of all objections to the petition.
Within 60 days after receipt of all documentation, the department must provide to the petitioner, the carrier, and the affected parties a written determination of whether the carrier properly adjusted or disallowed payment. The department must be guided by standards and policies set forth in this chapter, including all applicable reimbursement schedules, practice parameters, and protocols of treatment, in rendering its determination.
If the department finds an improper disallowance or improper adjustment of payment by an insurer, the insurer shall reimburse the health care provider, facility, insurer, or employer within 30 days, subject to the penalties provided in this subsection.
The department shall adopt rules to carry out this subsection. The rules may include provisions for consolidating petitions filed by a petitioner and expanding the timetable for rendering a determination upon a consolidated petition.
Any carrier that engages in a pattern or practice of arbitrarily or unreasonably disallowing or reducing payments to health care providers may be subject to one or more of the following penalties imposed by the department:
Repayment of the appropriate amount to the health care provider.
An administrative fine assessed by the department in an amount not to exceed $5,000 per instance of improperly disallowing or reducing payments.
Award of the health care provider’s costs, including a reasonable attorney’s fee, for prosecuting the petition.
Section 440.13(8), titled “Pattern or Practice of Overutilization,” requires carriers to report all instances of overutilization to the Department and requires the Department to make a determination whether a pattern or practice of overutilization exists. Section 440.13(8) provides as follows:
Carriers must report to the department all instances of overutilization including, but not limited to, all instances in which the carrier disallows or adjusts payment or a determination has been made that the provided or recommended treatment is in excess of the practice parameters and protocols of treatment established in this chapter. The department shall determine whether a pattern or practice of overutilization exists.
If the department determines that a health care provider has engaged in a pattern or practice of overutilization or a violation of this chapter or rules adopted by the department, including a pattern or practice of providing treatment in excess of the practice parameters or protocols of treatment, it may impose one or more of the following penalties:
An order of the department barring the provider from payment under this chapter;
Deauthorization of care under review;
Denial of payment for care rendered in the future;
Decertification of a health care provider certified as an expert medical advisor under subsection (9) or of a rehabilitation provider certified under s. 440.49;
An administrative fine assessed by the department in an amount not to exceed $5,000 per instance of overutilization or violation; and
Notification of and review by the appropriate licensing authority pursuant to s. 440.106(3).
Section 440.13(11), titled “Audits,” provides as follows, in relevant part:
The department may investigate health care providers to determine whether providers are complying with this chapter and with rules adopted by the department, whether the providers are engaging in overutilization, whether providers are engaging in improper billing practices, and whether providers are adhering to practice parameters and protocols established in accordance with this chapter. If the department finds that a health care provider has improperly billed, overutilized, or failed to comply with department rules or the requirements of this chapter, including, but not limited to, practice parameters and protocols established in accordance with this chapter, it must notify the provider of its findings and may determine that the health care provider may not receive payment from the carrier or may impose penalties as set forth in subsection (8) or other sections of this chapter. If the health care provider has received payment from a carrier for services that were improperly billed, that constitute overutilization, or that were outside practice parameters or protocols established in accordance with this chapter, it must return those payments to the carrier. The department may assess a penalty not to exceed $500 for each
overpayment that is not refunded within 30 days after notification of overpayment by the department or carrier.
The department shall monitor carriers as provided in this chapter. . . .
The department has exclusive jurisdiction to decide any matters concerning reimbursement, to resolve any overutilization dispute under subsection (7), and to decide any question concerning overutilization under subsection (8), which question or dispute arises after January 1, 1994.
The statutory structure for review of overpayment and/or overutilization issues is straightforward. Section 440.13(6) places upon the carrier the duty to review all claims for payment and to disallow or adjust payment when it finds there has been an overutilization of medical services or a billing error. The statute specifically states that the disallowance or adjustment must be made “without order of a judge of compensation claims or the department.” Section 440.20(2)(b) gives the carrier 45 calendar days in which to “pay, disallow, or deny” a bill submitted by a health care provider. There is no dispute that Sedgwick did not disallow or adjust any of the bills submitted by FINR/Oppidan. Sedgwick paid all of the bills without adjustment.
Section 440.13(7) sets forth a procedure for contesting “the disallowance or adjustment of payment by a carrier under subsection (6).” It makes no provision for the
situation presented by the instant case, i.e., a carrier that has already made payment to a health care provider under subsection (6) seeking to require disgorgement of those payments on grounds of overutilization.
That subsection (7) does not envision a contest by the paying carrier is made clear by the limited array of remedies offered by paragraph (7)(f): repayment by the carrier to the health care provider; a fine for each instance of improperly disallowing or reducing payments by the paying carrier; and the award of costs to the health care provider. None of these remedies would assist Petitioners in the instant case.
Section 440.13(8) places upon the carrier the duty to report to the Department all instances of overutilization, regardless of whether the carrier disallowed or adjusted payment to the provider. In turn, the Department is required to determine whether a pattern or practice of overutilization exists. If the Department finds a pattern or practice of overutilization or a violation of chapter 440 or rules adopted pursuant thereto, the Department may impose an array of penalties on the offending health care provider. None of these penalties includes repaying the carrier for payments already made by the carrier. Subparagraph (8)(b)5. provides for the payment of an administrative fine of up to $5,000 per instance
of overutilization, but application of this provision would provide no direct benefit to Petitioners.
Section 440.13(11) provides that the Department may
investigate health care providers to determine whether they are complying with chapter 440 and the rules adopted pursuant thereto and whether they are engaging in overutilization, among other things. If the Department finds that a provider has engaged in overutilization, it “may determine that the health care provider may not receive payment from the carrier, or may impose the penalties set forth in subsection (8) or other sections” of chapter 440.
Pertinent to this case, section 440.13(11)(a) provides: “If the health care provider has received payment from a carrier for services that were improperly billed, that constitute overutilization, or that were outside practice parameters or protocols established in accordance with this chapter, it must return those payments to the carrier.”
(Emphasis added). The Department may assess a penalty not exceeding $500 for each overpayment that is not refunded within
30 days after notification of overpayment by the Department or carrier.
Section 440.13(11)(c) provides that the Department has exclusive jurisdiction to decide any matters concerning reimbursement, to resolve any overutilization dispute under
subsection (7), and to decide any question concerning overutilization under subsection (8).
City of Hollywood v. Benoit, 830 So. 2d 254 (Fla. 1st
DCA 2002), involved an injured worker who began receiving benefits in 1995. In 1999, the employer/carrier conducted a utilization review pursuant to 440.13(6) and began disallowing payment of bills submitted by two health care providers. One of the providers requested dispute resolution at the Agency for Health Care Administration (“AHCA”), which at that time was the investigative agency pursuant to section 440.13(7).9/ After ACHA failed to resolve the dispute, the employer/carrier petitioned the Court for a writ of mandamus compelling AHCA to promptly resolve the matter, citing as authority sections 440.13(7), (8), and (11).
The Court granted the petition for writ of mandamus insofar as it related to AHCA’s failure to act in a timely manner pursuant to section 440.13(7). However, the Court also held as follows:
With regard to agency action under section 440.13(8) or 440.13(11), or both, we agree with AHCA that these are matters which are within its discretion. The employer/carrier may not compel the agency to undertake actions in accordance with those statutory subsections. We accordingly deny the petition for writ of mandamus to the extent it requests this Court to compel AHCA to
initiate proceedings pursuant to sections 440.13(8) and 440.13(11), Florida Statutes.
Benoit, 830 So. 2d at 255.
The Benoit decision makes clear that the Department
cannot be compelled to undertake the discretionary actions contemplated by subsections (8) and (11). The Department and Intervenors contend that Petitioners lack standing to seek an order forcing the Department to undertake those discretionary actions.
Petitioners concede that Benoit establishes that the Department’s decision to initiate an investigation under section
440.13(11)(a) is discretionary and cannot be coerced. However, Petitioners argue that in the instant case, the Department has already exercised its discretion under section 440.13(11)(b).
Pursuant to the Reimbursement Petition, the Department initiated and completed an investigation. The investigation caused the Department to conclude that there had been overutilization in the treatment of D.F. and to file the Notice of Intent against Dr. Villalba. Petitioners argue that they are entitled to reimbursement under the statutory language providing, “If the health care provider has received payment from a carrier for services . . . that constitute overutilization, . . . it must return those payments to the carrier.” § 440.13(11)(a), Fla.
Stat.
Petitioners argue that the result of the Department’s investigation was a finding of overutilization against FINR/Oppidan, notwithstanding that charges were brought only against Dr. Villalba. Petitioners contend that FINR/Oppidan’s failure to request a chapter 120 review of the overutilization finding rendered the Department’s audit final as to FINR/Oppidan. In this, Petitioners are simply mistaken. FINR/Oppidan was never the target of the Department’s investigation and no actionable findings were ever made against them. As noted at Findings of Fact 40-41, supra, the
Department’s target from the outset of the investigation was Dr. Villalba, not the health care facilities.
In the above Findings of Fact, the undersigned made clear his unease at the sleight-of-hand performed by the Department during its investigation. The Department first determined, for policy reasons, that the health care facilities should not be subjected to the penalties set forth in subsections (8) and (11), despite their statutory inclusion as “health care providers” in section 440.13(1)(h). The Department next decided to focus solely on Dr. Villalba because he was the medical director of FINR/Oppidan. The Department later dropped the charges against Dr. Villalba in part because he did not personally oversee D.F.’s treatment. The Department did not bother to determine who did provide direct care to D.F. The
Department settled the case against Dr. Villalba, meaning that no finding of overutilization was finalized against any of the entities that provided treatment to D.F.
Therefore, it appears that Petitioners do not have a remedy under section 440.13(8) and (11). In however desultory a fashion, the Department performed its duties in accordance with the letter of the cited provisions. It made an initial determination that a pattern or practice of overutilization existed as to Dr. Villalba. When its initial determination was challenged by Dr. Villalba, the Department chose to settle the matter. Contrary to Petitioners’ contention, the Department never made a formal finding or allegation of overutilization against FINR or Oppidan, and neither section 440.13(8) or (11) provides a means to compel the Department to do so after the settlement of the enforcement matter against Dr. Villalba.
The facts presented at the hearing did not establish that the Department abused its discretion in failing to make an initial finding of overutilization against FINR/Oppidan, a finding which would have commenced a chapter 120 hearing process in which the Department would have had to demonstrate by clear and convincing evidence that FINR/Oppidan had engaged in overutilization. See Dept. of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 83 (Fla. 1996)(to impose administrative fines or
penalties, agency must prove statutory violations by clear and convincing evidence).
In light of the facts that Petitioners did not contest any of the charges made by FINR/Oppidan until long after they paid them in full and that any administrative hearing would involve proving a years-old case with expert opinions based on a paper record, and further in light of the Department’s policy consideration that enforcement actions against health care facilities could have negative impacts on other injured workers being treated at those facilities, it was at least arguably prudent for the Department to limit its initial enforcement action in this case to Dr. Villalba.
The undersigned has expressed some skepticism as to the wisdom of the Department’s decision not to pursue either the health care facilities or any of the physicians who actually provided treatment to D.F., but nonetheless concludes that such decision is discretionary with the Department and that this discretion has not been abused in this case.
Section 440.13(8) requires carriers to report to the Department all instances of overutilization. It requires the Department to make a determination whether a pattern or practice of overutilization exists, but provides no point of entry for a carrier to contest any action by the Department.
Section 440.13(11) provides that the Department may investigate health care providers to determine, among other things, whether they are engaging in overutilization. The statute does not provide any means of forcing the Department to conduct an investigation.
Subsection (11) does provide that if the Department determines that a health care provider has received payments from a carrier that constitute overutilization, the provider “must return those payments to the carrier.” The Department would issue an order preliminarily determining that the health care provider has engaged in overutilization and is subject to the penalties provided by section 440.13(8) and (11). The health care provider would be entitled to contest the Department’s order in a chapter 120 proceeding.
It is uncertain whether the carrier would have a right to participate in this chapter 120 proceeding. The general rule is that a citizen does not have the right to intervene in an agency enforcement proceeding. Morgan v. Dep’t of Envtl. Prot.,
98 So. 3d 651, 652-53 (Fla. 3d DCA 2012). However, in this case the statute names the carrier as entitled to reimbursement of payments for services that constitute overutilization. Such specific mention in the statute could establish a right to intervene. However, an intervenor’s rights are “conditional in that they exist only so long as the litigation continues between
the parties.” Envtl. Confederation of Sw. Fla., Inc. v. IMC
Phosphates, Inc., 857 So. 2d 207, 211 (Fla. 1st DCA 2003). If the parties decide to settle or voluntarily dismiss the case, the intervenor’s rights are foreclosed. Id.
In any event, the Notice of Intent to Dr. Villalba was the only conceivable point of entry for Petitioners to assert their claim for reimbursement under sections 440.13(8) and (11). Petitioners’ counsel was provided the Notice of Intent. Petitioners point to no statutory obligation that required the Department to provide them with additional notice during the negotiations with Dr. Villalba. The Department and Dr. Villalba settled the case before it was referred to DOAH. No right of Petitioners was violated. The Department properly dismissed the Reimbursement Petition.
During the period of D.F.’s treatment by FINR/Oppidan, Petitioners had abundant opportunities to avail themselves of the remedy afforded by section 440.13(6) in accord with the “efficient and self-executing system” envisioned by the Legislature. Petitioners had their own prudential reasons for deciding not to deny payment of the bills and invoices submitted by FINR/Oppidan, including the fear of a lawsuit should D.F. attempt to harm himself. Once they declined their affirmative right to deny payment under subsection (6), Petitioners’ ability to obtain reimbursement was subject to the Department’s
discretion under subsection (11). Petitioners’ remorse at having paid in full for what in hindsight appears to have been overutilization of services, however justified, does not of itself give rise to a remedy beyond those offered by the statute. DOAH does not have authority to fashion equitable remedies. See § 26.012, Fla. Stat.
Under the circumstances presented by the facts of this case, Petitioners lack standing to invoke the remedies afforded by sections 440.13(8) and (11), Florida Statutes, in this tribunal. It is unnecessary to reach the other issues presented in the above Statement of the Issues.
Based on the foregoing, it is, therefore,
RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order dismissing the Petition for Formal Administrative Hearing.
DONE AND ENTERED this 19th day of February, 2016, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
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 19th day of February, 2016.
ENDNOTES
1/ Through the final hearing, Intervenors were represented by Ginger Barry Boyd and Lacey D. Corona, Broad and Cassel, 4100 Legendary Drive, Suite 280, Destin, Florida 32541. By Order dated December 18, 2015, Intervenors’ motion to substitute Mr. Thompson as counsel was granted.
2/ Chapter 394, Part I, Florida Statutes, is called the “The Florida Mental Health Act” or “The Baker Act.” In relevant part, the Baker Act provides for the involuntary inpatient placement for treatment upon a finding of a court by clear and convincing evidence that the person is mentally ill and because of that mental illness has refused voluntary placement for treatment or is unable to determine for himself that such placement is necessary. The court must also find that the person is “manifestly incapable” of surviving alone or with the help of willing family or friends and that his neglect to or refusal to care for himself poses a real and substantial threat to his well-being, or that there is a substantial likelihood that he will in the near future inflict serious bodily harm on himself or another person. § 394.467(1), Fla. Stat.
3/ It should be noted that, although D.F. was residing at the Oppidan facility, he went home on most weekends and took a ten- day vacation to Maine during this period.
4/ Elizabeth Rock, director of accounts receivable for FINR, testified at the hearing that FINR acknowledges its ethical obligation to continue care of residents even after they are no longer eligible for reimbursement from an insurer or employer. She testified that FINR/Oppidan would have continued D.F.’s treatment even if the carrier had disallowed or reduced the payments.
5/ The other claims for relief cited in the Petition are not relevant because, at the outset of the final hearing, the parties stipulated that Petitioners were seeking relief only under subsections (8) and (11) of section 440.13.
6/ Mr. Lloyd’s testimony finessed the fact that an array of disciplinary actions is available to the Department short of
barring a provider from participating in the workers’ compensation program. See § 440.13(8)(b), Fla. Stat.
7/ Counsel for Petitioners is listed as a recipient of a mailed copy of this document.
8/ During the period relevant to this proceeding, Florida Administrative Code Rule 69L-7.710(5)(k) provided:
(k) An insurer, service company/TPA [third party administrator] or any entity acting on behalf of the insurer shall pay, adjust, disallow or deny billed charges within 45- calendar days from the date insurer received, pursuant to Section 440.20(2)(b), F.S.
Effective February 18, 2016, the substance of this language will be found at rule 69L-7.740(12).
9/ At the time of Benoit, AHCA was also the investigative agency under sections 440.13(8) and (11)(a). The substance of those provisions is otherwise substantially the same as the version under discussion in the instant case.
COPIES FURNISHED:
Cynthia L. Jakeman, Esquire Department of Financial Services
200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed)
James N. McConnaughhay, Esquire McConnaughhay, Duffy, Coonrod,
Pope, Weaver, Stern & Thomas, P.A. Suite 200
1709 Hermitage Boulevard
Tallahassee, Florida 32308 (eServed)
Lacey DeLori Corona, Esquire Broad and Cassel
Suite 280
4100 Legendary Drive
Destin, Florida 32541 (eServed)
Daniel Hays Thompson, Esquire Berger Singerman, LLP
Suite 300
125 South Gadsden Street Tallahassee, Florida 32301 (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.
| Issue Date | Document | Summary |
|---|---|---|
| May 24, 2016 | Agency Final Order | |
| Feb. 19, 2016 | Recommended Order | Carrier failed to establish standing to seek administrative remedy for payments to health care provider alleged to constitute overutilization. |
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