The Issue Whether Petitioner should continue to receive services of incontinence supplies from Respondent.
Findings Of Fact William suffers from Spina Bifida (SB), having been born with SB, and is confined to a wheelchair. Among other things, SB affects his bladder and urinary tract system. William is now 17 years of age. William must catheterize each day. If he does not, bladder infections will occur, which in turn will lead to kidney problems. William is in need of diapers, which assist in preventing infections. As a result of SB, William also suffers from incontinence. He is in need of diapers. In addition to helping his medical condition, the diapers help to maintain William’s self-esteem when he is around his classmates and others. There is no dispute that William has a disability, that he needs diapers, and that he is eligible for the service. As of November 1, 2001, the Department terminated the services of providing diapers to William because there were “insufficient funds with which to continue funding the service,” with such service being “funded solely through the Department’s Individual Family Supports [IFS] or General Revenue.” The Department provided written notification of the termination by letter dated March 15, 2002. Ms. St. Pierre was orally notified by William's Support Coordinator on November 15, 2001; shortly thereafter, a letter was to be sent to Ms. St. Pierre from the Department explaining the reason for the termination. No evidence was presented to show that the letter was sent. IFS is funded by general revenue dollars. The providing of William's service--providing diapers-- is through general revenue. William is continuing to receive the service pending the outcome of the instant case. Only recently, in or around July 2002, Ms. St. Pierre became re-employed after having been unemployed for approximately three months. The focus of the instant matter is not on William’s eligibility for services but on the Department’s limited funds and on the spending-prioritization policies adopted by the Department and approved by the Florida Legislature. One of the documents that the Department relies upon for the termination of William’s service is the “Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions” (Spending Plan). The Spending Plan states in pertinent part: By June 30, 2001, the Department of Children and Families expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, the Department will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, the Department must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether [the] Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver-funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. The Department will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. As to the Spending Plan, as it relates to spending at the local level, the Department's local districts submit their needs to the Department and the Department determines the allocations. The Department determines how the dollars will be spent. The Department also relies upon the following document: "Developmental Disabilities Program Fiscal Year 2001-2002 Spending Plan, Interim Notice To Individuals Seeking Services From The Florida Developmental Disabilities Program"--Revised September 2001--hereinafter, Interim Notice. The Interim Notice addresses the Waiver program and provides in pertinent part: The Agency for Health Care Administration, the State Medicaid Agency, and the Department of Children and Family Services have requested permission from the Department of Health and Human Services, Health Care Financing Administration (HCFA), to add 450 additional persons to the Florida Developmental Services Home and Community- Based Services Waiver (Waiver) between now and March 1, 2002. At this point, with the funding appropriated by the Florida Legislature for fiscal year 2001-2002, the Department anticipates that it will enroll no more than 450 persons on the Waiver before March 1, 2002. The persons who will be enrolled on the Waiver out of these available slots or vacancies are as follows: No more than 350 persons who became clients of the Developmental Disabilities Program prior to July 1, 1999, and who wish to be enrolled on the Waiver. No more than 80 persons who have become clients of the Developmental Disabilities Program after July 1, 1999, who are determined to be in a life-threatening crisis. . . . All individuals currently residing in private ICF/DDs who, after choice counseling, request community-based placement and are determined by the state's treatment professionals to be appropriate for community-based placement. You may have heard that the Florida Legislature appropriated $78,000,000 in additional funding to community-based services individuals with developmental disabilities. However, only about $20,000,000 of this appropriation will be available to enroll new individuals on the Waiver. About $58,000,000 of the appropriated amount for community-based services for fiscal year 2001-2002 is needed to continue funding services for individuals who were enrolled on the Waiver last year. . . . William's mother did not receive a copy of the Interim Notice. Additionally, the Department relies upon the following document: "Developmental Services Home and Community-Based Services Waiver Services Directory." This document too addresses the Waiver program. Further, the Department relies upon two legislative conference reports for fiscal year 1999-2000 and 2000-2001. The two conference reports are instructive. The "Conference Report on Senate Bill 2500: General Appropriations for 1999-2000" provides in pertinent part: From the funds in Specific Appropriation 381, $20,000,000 in recurring Tobacco Settlement Trust Fund and $25,259,108 in Operations and Maintenance Trust Funds are provided to meet the needs of developmental services participants based on the individuals' most recent support plans. This lump sum is a continuation of the 1998-99 appropriation based on a redesigned system. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services . . . A budget amendment for the release of all or a portion of this lump sum is contingent upon accurately reporting the needs of those persons who are under-served waiver participants to the legislature. The "Conference Report on House Bill 2500: General Appropriations Act FY 2000-2001" provides in pertinent part: Funds in Specific Appropriation 344 and 339 are provided to meet the needs of developmental services Medicaid Waiver participants based on the individuals' most recent support plans. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements or other community waiver services, and 2) Meeting the needs of identified under served participants in the Home and Community Based Waiver Services . . . The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services with the exception of room and board payment. . . . No conference report for the fiscal year 2001-2002 was presented by the Department. The Department relies upon several other documents that pertain to the Developmental Services Home and Community-Based Services waiver. The testimony of the Department's witness, as to the Department's funding, focused primarily on the Waiver program, not general revenue. The focus of Department's documents is the Waiver program, not general revenue. The Department's evidence of lack of general revenue funds is insufficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating the providing of diaper services to William Alaire. DONE AND ENTERED this 26th day of November, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of November, 2002. COPIES FURNISHED: Wendy St. Pierre Qualified Representative 1295 Savoyard Way Royal Palm Beach, Florida 33411 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this cause is whether petitioner is entitled to either an agricultural classification of its land under F.S. 193.461 or a reduced assessment of its land under F.S. 193.011 for purposes of ad valorem taxation. More specifically, the issue is whether the change made by the Palm Beach County Board of Tax Adjustment in the property appraiser's assessment of petitioner's property lacked legal sufficiency or whether the evidence presented was insufficient to overcome the appraiser's presumption of correctness. In accordance with F.S. 193.122(1) and the case of Hollywood Jaycees v. State Department of Revenue, 306 So.2d 109 (Fla. 1975), the evidence and argument adduced at the hearing was limited to the scope of the record established before the Palm Beach County Board of Tax Adjustment (BTA).
Findings Of Fact Upon consideration of the pleadings, evidence introduced at the hearing and the oral argument presented by the parties, the following pertinent facts are found: Petitioner is the owner of approximately 310 acres of real property located in Palm Beach County. As of January 1, 1974, the subject property was used for agricultural purposes and had been so used by petitioner or its predecessor for some nineteen years prior to 1974. Prior to 1974, the subject land had been assessed at $600.00 per acre and had not been reassessed in approximately six years. Prior to and including 1974, petitioner did not file an application for agricultural classification of its land. For the year 1974, the property appraiser assessed the subject property at $4,000.00 per acre under the provisions of F.S. 193.011. Petitioner appealed to the Palm Beach County BTA which found that the appraiser's presumption of correctness had been overcome and that petitioner should be allowed to retain the prior years' assessment on its property ($600.00 per acre). In support of this decision, the BTA found that it had the authority to extend the time for filing an application for agricultural classification and that it had the authority "in light of AGO 71-81 dated April 28, 1971, to grant the continuance of a prior years assessment where the facts and circumstances surrounding the subject property have not changed and are not expected to change. The BTA notified the respondent of the change in assessment pursuant to F.S. 193.122. The respondent's staff recommended that the BTA's action in this case be invalidated on the ground that the evidence presented to the BTA was insufficient to overcome the property appraiser's presumption of correctness. The petitioner requested a hearing to review the staff recommendation, the respondent's Executive Director requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned as the Hearing Officer. Due to the fact that there was no court reporter present at the hearing, the parties stipulated that their respective positions would be reduced to writing by the submission of written memoranda. To date, no such memorandum has been received from petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Palm Beach County Board of Tax Adjustment in granting an agricultural classification and in reducing the assessment of petitioner's property for the tax year 1974 be invalidated. Respectfully submitted and entered this 3rd day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 3230 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1976.
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Petitioner, a health care provider, filed a timely, valid petition with Respondent to challenge Intervenors’ disallowance of payment for certain dates of service to a workers’ compensation claimant.
Findings Of Fact At the times relevant to this proceeding, Intervenors had accepted that the claimant had suffered a compensable injury under the Florida workers’ compensation laws and had paid benefits to and on behalf of claimant. The date of the compensable injury was July 8, 1994. On September 30, 2004, Mr. Spangler, as counsel for the carrier, prepared the Notice that was received by Petitioner on October 4, 2004. The Notice provided, in part, as follows: The purpose of this letter is to inform you of the findings from the Carrier’s utilization review investigation. Based upon the opinions of Carrier Medical Consultants, the Carrier has concluded that there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary. Additionally, it appears that some bills may not have been timely submitted to the Carrier. . . . Accordingly, the Carrier has decided that specific dates of service will be disallowed and they are as follows: 04/26/04, 06/01/04, 07/12/04 Based upon its utilization review investigation, the Carrier also believes that the treatment rendered on the following dates [sic] was also excessive, and neither reasonable nor medically necessary. Nevertheless, the Carrier has agreed to reimburse for these specific dates [sic] of service which are as follows: 08/17/04 As the health care provider, you have certain rights and responsibilities under Florida Statutes and Florida Administrative Code. This office sent you a very detailed letter that explained the requirements and procedures under the utilization review provisions of Section 440.13(7), Florida Statutes. Please note the under Section 440.13(7)(a), Florida Statutes, “Any health care provider . . . who elects to contest the disallowance . . . of payment by a carrier under 440.13 subsection (6) must, within 30 days after receipt of notice of disallowance petition the agency to resolve the dispute.” The 30 days begin to run from the date this letter is received. Additionally, please find enclosed the Explanation of Benefits regarding these dates of service. Please reference our previous correspondence forwarded to you or contact the undersigned if you have any questions concerning this matter. Enclosed with the carrier’s letter of September 30, 2004, was the Explanation, which consisted of two pages. The carrier’s Notice was a “disallowance of payment” within the meaning of Section 440.13(7), Florida Statutes, and a “reimbursement decision” within the meaning of Florida Administrative Code Rule 59A-31.002. Petitioner mailed a letter to Respondent dated October 25, 2004, that was received by Respondent’s mailroom and delivered to Ms. Reynolds on November 1, 2004. Ms. Reynolds testified that the envelope for the letter reflected that it was mailed on October 29, 2004, in Miami. The two-page letter, which has been redacted to protect the privacy of the claimant, stated the following: I am a Board Certified physician in the field of psychiatry. I have been the treating physician, under the worker’s compensation law, for the above noted patient for many years. I undertook [her/his] treatment on September 19, 2000, at the request of the carrier, following retirement of [her/his] original treating physician. At the that time [she/he] was already adjudicated permanent total disability and it [sic] was already determined to be suffering from severe depression, on various medications and needing continued follow-up care. I was advised by the patient’s attorney that the carrier was trying to close the case including closing the medical. The patient however is in need of continued medical care and has no viable alternative source therefore. I then received various communications from the insurance carrier’s attorney pointing out their rational [sic] for disallowance of medically necessary services. In my field the doctor-patient relationship is of course particularly important and it would be most detrimental to the patient and, at least at this point, I declined to follow a course of curtailing needed services. I then received the enclosed communication disallowing payment for 4 [sic] recent visits per the enclosure. The letter advises to challenge the same it is necessary to “petition” the agency within 30 days of notification. My office was unable to determine to whom I was supposed to respond and in what form. I accordingly incredibly was required to seek the assistance of an attorney to simply try to top [sic] track down whom I was supposed to contact and in what manner. The attorney advises me that after his personal efforts for in excess of two hours, multiple calls including office of employee assistance, AHCA itself several times, Division of Worker’s Compensation and several faxed letters that he was provided the above address. I am further advised that there is no form for this petition, but a responding letter will serve as the petition. Before my addressing the 4 [sic] bills I would suggest it imperative that you need to address a requirement that the carrier in any disallowing communication be required to advise as to whom is to be contacted if objection is made and that a letter will suffice. Given the diagnosis of the patient, Major Depressive Disorder, Recurrent, Severe, With Psychotic Features, it is the accepted guidelines of treatment based on research and practice to combine the use of individual psychotherapy and psychotropic medication for maximum results. This patient’s care has been minimized to 6 visits a year and I don’t see how she can be treated with less frequency and time than that. The minimum time that can be given with this frequency of visits is at least 45-60 minutes to obtain results. An alternative would be twice a month visits of 25 minutes, which will be more costly. If any additional information is needed to expedite my petition please advise. It is undisputed that three forms completed and signed by Petitioner were enclosed with the letter of October 25, 2004. Each form was captioned “Workmen [sic] Compensation Report” (the Report forms) and were, respectively, for the dates of service April 26, 2004; June 1, 2004; and July 12, 2004, that are at issue in this proceeding (the dates of service).3 The three Report forms were the only enclosures with the letter of October 25 received by Ms. Reynolds on November 1, 2004. Ms. Febus typed and mailed the letter of October 25. Ms. Febus testified that in addition to the three Report forms, she also included with the October 25 letter a “Health Insurance Claim Form” for each date of service, the Notice, and the two- page Explanation. The original of each of the Health Insurance Claim Forms was mailed to the carrier and constituted a billing for the services rendered to the claimant by Petitioner on each respective date of service. Petitioner introduced as part of its composite exhibit a copy of his file copy of each Health Insurance Claim Form. Each of the Health Insurance Claim Forms introduced by Petitioner (the three forms Ms. Febus testified she enclosed with the October 25 correspondence) reflects that Petitioner signed the form on December 22, 2004 (block 31 of each form), and that the claimant signed a release of medical information on December 22, 2004 (block 12 on each form). These three Health Insurance Claim Forms were the only billings that Petitioner alleged was enclosed with the October 25 correspondence. Ms. Febus’ testimony was based on her memory. She did not note on the letter the list of enclosures (other than a reference to the Notice) and she did not keep a file copy of her complete submission package. The mailing of the October 25 correspondence was by regular mail, not certified mail. A notation on the bottom of Petitioner’s letter reflects that a copy was mailed to the carrier’s adjuster, to Mr. Spangler, and to Mr. Keyfetz. Each of these mailings was by regular mail. There was no evidence as to what enclosures were included with any of these mailings and there was no indication on the letter whether the copies included the enclosures. On November 1, 2004, after her review of the October 25 correspondence, Ms. Reynolds telephoned Petitioner’s office and talked to Ms. Febus. Ms. Reynolds believed the correspondence constituted an inquiry, not a petition to resolve a disputed disallowance. Ms. Reynolds and Ms. Febus discussed the applicable statute and rule and they discussed the required contents of a petition to resolve a disputed disallowance. Ms. Reynolds and Ms. Febus did not discuss the enclosure that had been received with the October 25 correspondence. On November 1, 2004, Ms. Reynolds followed up her conversation with Ms. Febus by sending her an e-mail. Ms. Reynolds’ e-mail provided, in part, the following: This is a continuation of our telephone conversation of today regarding the 10-25-04 letter from Dr. Merayo. Attached are 2 documents which may assist to orient you to 2 sections of the Florida WC Law which may impact the issues which are spoken to in the letter. Please feel free to call me for further discussion regarding Florida’s WC Law and the medical issues that you may have questions [sic]. The 2 sections of the law that I immediately wish to draw your attention to are: ss. 440.13 and subsection 7(a) and ss. 440.192 F.S. The second section deals with the CLAIMANT’S benefits under Fla. WC Law ... these issues, when impacted, are decided by a Judge of Compensation Claims, following the submission of a proper request by the CLAIMANT. THE FIRST SECTION, ss. 440.13(7), F.S., addresses the way a dispute is submitted to this Agency (using the address below). Should you have further questions, do not hesitate to contact me. Ms. Reynolds attached to her e-mail copies of Sections 440.192 and 440.13(7), Florida Statutes, and Florida Administrative Code Rule 59A-31.002. Section 440.192, Florida Statutes, pertains to disputes between a claimant and a carrier that are resolved by a Judge of Compensation Claims. Those provisions are not relevant to the issues in this proceeding. Section 440.13(7), Florida Statutes, pertains to reimbursement disputes between a provider and a carrier and provides in relevant part, as follows: UTILIZATION AND REIMBURSEMENT DISPUTES.- 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 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 agency results in dismissal of the petition. 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 documentation to the agency within 10 days constitutes a waiver of all objections to the petition. Within 60 days after receipt of all documentation, the agency must provide to the petitioner, the carrier, and the affected parties a written determination of whether the carrier properly adjusted or disallowed payment. The agency 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 agency 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 agency 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. ... Florida Administrative Code Rule 59A-31.002, provides as follows: In those instances when a provider does not agree with a carrier’s reconsidered reimbursement decision, the Agency will, upon request, provide for a settlement of such reimbursement dispute through a review process conducted by the Agency’s Bureau of Managed Care. The provider, the carrier or the employer may request a resolution to a reimbursement dispute from the Agency. A valid Request for Resolution of Disputed Reimbursement must: Be in writing and specify the specific service(s) and policy being disputed. Include copies of the following: All bills submitted or resubmitted that are related to the services in question and their attachments. All applicable Explanations of Medical Benefits. All correspondence between the carrier and provider which is relevant to the disputed reimbursement. Any notation of phone calls regarding authorization. Any pertinent or required health care records or reports or carrier medical opinions. The Agency’s response to a valid disputed reimbursement request will: Be within 60 days of receipt. Establish the proper reimbursement amount, including over and under payments. Identify the basis for the decision. Be sent to the provider, carrier and employer. Be in writing. Provide for reconsiderations through physicians and peer review before an appeal [sic] pursuant to Section 120.57, Florida Statutes. Requests for Resolution of Disputed Reimbursement will be returned as not valid when: The required documentation is not included with the request. The date of the request for a reconsideration exceeds the time requirements as specified in this section. . . . The next communication between Petitioner and Respondent was in the form of a letter dated December 22, 2004, from Mr. Keyfetz on behalf of Petitioner to Respondent. After referencing the reimbursement dispute, the letter provided as follows: I am in receipt of copy of responsive petition by Dr. Merayo dated October 25, 2004, in connection with the above matter. Dr. Merayo advises he has received no response thereto let alone the required response within 10 days receipt by the carrier. It is provided: Failure of the carrier to timely submit the requested documentation to the agency within 10 days constitutes a waiver of all objections to the petition. We await your written determination, which is now due regarding the carrier disallowance of these amounts. The letter from Mr. Keyfetz dated December 22, 2004, prompted a letter from Mr. Spangler on behalf of the carrier dated December 30, 2004. After receiving a copy of Mr. Spangler’s letter, Mr. Keyfetz wrote a second letter to Respondent on January 5, 2005, that attempts to refute Mr. Spangler’s letter and again demands a written determination of the disputed reimbursements. On January 26, 2005, Ms. Reynolds responded to Petitioner with copies to Mr. Keyfetz and Mr. Spangler. This is to acknowledge not only your letter of October 25, 2004, but also the correspondence recently received from [Mr. Keyfetz and Mr. Spangler]. At issue is the acknowledgment of correspondence sent by you to this office dated October 25, 2004, received by this office on November 1, 2004. This correspondence was a two-page letter with reference to a disallowance of payment for treatment rendered to the claimant: [name redacted]. Attachments to this letter were 3 progress reports dated: 08-12-04, 06-01- 04, and 04-26-04, from the Merayo Medical Arts Group and signed with your apparent signature. The progress reports show [claimant’s] Date of Accident (D/A) as 07- 08-1984. On November 1, 2004, in response to this correspondence, I telephoned your office and spoke with Vinette, who identified herself as a representative of your office staff. It was during this telephone conversation, I clarified the definition of a disallowance, denial and a payment made at a different amount from that which was billed. Each of these circumstances has specific procedures, which must be met in order to address a disagreement concerning the carrier’s action. I followed this conversation with an e- mail sent, at Vinette’s direction to ... I have attached a copy of this e-mail and the attachments contained in this e-mail to this letter. I have had no follow-up communication from your office following this action. No file was established in this office. This correspondence was handled as an inquiry. However, subsequent to this action, on December 27 [, 2004] and on January 10, 2005, letters were received from [Mr. Keyfetz] regarding your original October 25, 2004, correspondence. [Mr. Spangler], the carrier’s representative, sent a letter dated December 30, 2004. This is to inform you that this office cannot address the issues brought forward except to clarify to you sections of Chapter 440, which may be of import to your quest for assistance.[4] * * * You failed to comply with these requirements as a contested disallowance or adjustment of payment by the carrier. I have dismissed this correspondence as an invalid submission of a reimbursement dispute.[5]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing the October 25 correspondence as an invalid petition. DONE AND ENTERED this 29th day of September, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 29th day of September, 2005.
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, F.S., Chapters 120.455 and 475, F.S., and the rules promulgated pursuant thereto. Respondent is now and at all times material hereto was a licensed real estate salesman in the State of Florida having been issued License No. 0418629, in accordance with Chapter 475, F.S. The last license issued was as a salesman with a home address of 594 Andrews Street, Ormond Beach, Florida, 32075. From April 8, 1987, until September 11, 1987 he was on inactive status. From September 11, 1987 until at least November, 1987, he was on active status. His license expired March 31, 1988 and has not been renewed. Respondent and the owners (Goldsmiths) of certain property at 49 Sea Island Drive, North Ormond Beach, Florida, entered into an equity sharing agreement on October 1, 1986. Thereafter, Respondent was half owner of the property, and acted as agent for himself and the Goldsmiths for management and rental of the property. Sometime in early 1987, Respondent's former wife contacted Richard M. Dow of Watson Realty Corporation concerning Watson Realty Corporation's assuming management and rental authority over the property. Mr. Dow gave Respondent's wife a packet of information which included several types of material, including but not limited to, a blank standard lease form which had been stamped at the top with the name WATSON REALTY CORPORATION 425 S. YONGE STREET [U.S. 1] ORMOND BEACH, Florida 32074 The name "Watson Realty" was also printed in the body of the lease as agent for the premises, which, like all other crucial information was left blank. No agreement was ever reached by which Watson Realty Corp. or Mr. Dow were to take over management of the premises. On or about April 1, 1987, while still on active license status, the Respondent negotiated a six month lease of the premises at 49 Sea Island Drive, North Ormond Beach, Florida, with Sidney and Edythe Hirsch. By filling out the blank lease form obtained from Watson Realty Corp., Respondent entered into the six-month lease on behalf of himself and the Goldsmiths. He filled out the blank spaces with his name as lessor and the Hirsches as lessees, and crossed out the "Watson Realty Corp." in the body of the lease, substituting his own name therefor. He failed to cross out the stamped Watson Realty Corp. name and address at the top of the page. At the time of the signing of the lease, Respondent advised Mr. Hirsch that he was a licensed real estate agent because he had been taught he must make such disclosures in personal dealings so as not to take advantage of laymen. At formal hearing, he denied ever representing himself as an agent of Watson Realty Corp. or of Mr. Dow. Mr. Hirsch likewise testified that no such representation was made, only that Respondent said something like, "I work with them." Both Respondent and Mr. Hirsch concur that Respondent represented himself as the owner of the property in question without mentioning the Goldsmiths' interest. Hirsch knew and agreed to the scratching through of the Watson corporate name in the body of the contract, and to the substitution of Respondent's name therefor, but no one thought to cross through the stamped Watson name and address at the top of the page. In connection with the lease, Mr. Hirsch gave to the Respondent a $600 security deposit. Respondent shared the rent proceeds with the Goldsmiths even though he did not include their names on the lease or specifically advise the Hirsches of the Goldsmiths' interest in the property. Although the better course of action would have been for Respondent to make a fuller disclosure and to accurately make out the lease agreement with regard to the Goldsmiths' interest, no fraud or intent to defraud either the Goldsmiths or the Hirsches was demonstrated in Respondent's omissions in this regard. At no time alleged herein was Respondent registered as a real estate salesman in the employ of Watson Realty Corp. and at no time was the Respondent employed by Watson Realty Corp. in any capacity. Upon the termination of the lease period, the Hirsches vacated the house and made demands upon the Respondent for the return of their $600 security deposit. The Respondent refused to return the deposit because of substantial damage to the property in three rooms of the house. Hirsches' attorney and Respondent met to attempt to resolve the issue and then had a trial date set. Respondent appeared on the originally scheduled trial date but the case was continued. Respondent separated from his wife and moved to a different address without maintaining contact with the Hirsches' attorney, the court, the Department of Professional Regulation, or the Florida Real Estate Commission (FREC). Over a period of time, he lived at several addresses and eventually moved out of state. Although he was still living in the State of Florida at the time, he did not appear for trial on the security deposit demand, and on January 14, 1988, the Hirsches obtained a civil judgment against Respondent for payment of the $600 security deposit. Respondent had not satisfied the judgment as of the date of the filing of the Administrative Complaint herein and did not do so up through the date of formal hearing. Although Respondent expended a great deal of effort at formal hearing attempting to establish that he never received actual notice of the trial date for the $600 civil damages suit due to his frequent change of addresses during the course of his divorce, that is immaterial because the law presumes notice once suit is filed and properly served as apparently occurred in that case. Unless set aside, the judgment against Respondent was final and Respondent owed Hirsch the money due under it. However, under the circumstances, it is found that Respondent did not fail to pay Hirsch on the judgment through any intent to defraud, but merely through a misunderstanding as to the effect of the judgment. Mr. Hirsch eventually sought and obtained reimbursement of the $600 judgment amount from the FREC client security fund. The fund paid after significant unsuccessful attempts had been made to find Respondent. Respondent also maintained that he did not know about the reimbursement proceedings instituted by FREC until four days before formal hearing and he made offers at formal hearing to pay off this amount. He was not charged in the pending Administrative Complaint in this proceeding with any fraud with regard to his failure to respond to service in the FREC client security fund reimbursement proceeding.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-6331 The following constitute specific rulings pursuant to Section 120.59(2), F.S., upon the parties' respective Proposed Findings of Fact (PFOF): Petitioner' s PFOF: Petitioner filed no PFOF. Respondent' s PFOF: 1,13,14 Accepted in part; the remainder is rejected as subordinate to the facts as found. 2-5 Rejected as subordinate to the facts as found. 6-12 Rejected as immaterial and as referencing and relying upon matters outside the record as created at formal hearing. 15,16 Rejected in part as subordinate to the facts as found and in part as cumulative and otherwise as mere argument. COPIES FURNISHED: Arthur R. Shell, Jr. Senior Attorney Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Mr. Frederick A. Bentley 402 Daytona Avenue Holly Hill, Florida 32017 Darlene F. Keller, Director Division of Real Estate 400 W. Robinson Street Tallahassee, Florida 32802 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750
