The Issue Whether the Petitioner is entitled to receive Health Insurance Subsidy payments retroactive to July 1995, the month she began to receive retirement benefits from the Respondent as the surviving spouse of a member of the Florida Retirement System.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida retirement and pension systems. Section 121.025, Florida Statutes (1995). The Division is, and was at the times material to this case, also responsible for administering the Retiree Health Insurance Subsidy. Section 112.363(7), Florida Statutes (1995). Harold Mosser, the former husband of Mrs. Kirkley, retired from his job as a school principal in August 1979, and he was a member of the Florida Retirement System. Mr. Mosser received a monthly state retirement benefit, and, as a supplement to the retirement benefit, he received a monthly Health Insurance Subsidy. Mrs. Kirkley retired from her job as a schoolteacher in 1989, and she is a member of the Florida Retirement System. Since her retirement, Mrs. Kirkley has received a monthly state retirement benefit and a monthly Health Insurance Subsidy. Mr. Mosser died on April 28, 1995. Mrs. Kirkley did not advise the Division of Mr. Mosser's death. Rather, the Division learned of his death in July 1995, when conducting a routine check of the Bureau of Vital Statistics "death tape." As Mr. Mosser's surviving spouse and the person he named as his joint annuitant, Mrs. Kirkley was entitled to receive an "Option 3" monthly retirement benefit for the remainder of her lifetime, pursuant to Section 121.09, Florida Statutes (1995). Mrs. Kirkley was also eligible to receive a monthly Health Insurance Subsidy upon filing an application for the subsidy with the Division, and this benefit included payment of the subsidy from the date of Mr. Mosser's death or for the six months prior to the date the application was filed.1 In a Statement of Retirement Benefit Payments dated 1/31/95, the components of Mr. Mossers's monthly retirement benefit payments were identified. At the time of his death, Mr. Mosser received a gross monthly retirement benefit of $1,730.60, plus a Health Insurance Subsidy of $90.00, minus $250.00 withholding tax, for total net monthly benefits of $1,570.60. Because the Division did not learn of Mr. Mosser's death until July 1995, his monthly benefit check was issued in May and June 1995 and electronically deposited in NationsBank. When the Division learned of Mr. Mosser's death, a Division representative tried to reach Mrs. Kirkley by telephone but could not obtain her unlisted telephone number. The representative then sent Mrs. Kirkley a letter dated July 20, 1995, in which the representative advised Mrs. Kirkley that Mr. Mosser's estate was entitled to receive his benefits for the month of April 1995 in the net amount of $1,570.60 and that she must apply for a continuing monthly benefit as Mr. Mosser's designated beneficiary. The representative also advised Mrs. Kirkley to complete the Division Form FST-11b that was enclosed with the letter and to return it to the Division together with Mr. Mosser's death certificate. Mrs. Kirkley completed the form enclosed with the letter and mailed it to the Division as directed. The Division changed Mr. Mosser's account over to Mrs. Kirkley, and she began receiving a monthly retirement benefit check in October 1995.2 Mr. Mosser's Health Insurance Subsidy was terminated effective July 1995, and the net monthly benefit received by Mrs. Kirkley as Mr. Mosser's beneficiary did not include a Health Insurance Subsidy payment. It is the Division's practice to send each retiree added to the system a "retiree packet" that includes, among other things, an application for the Health Insurance Subsidy and an explanation of the subsidy, as well as a booklet containing an explanation of all of the benefits available to retirees and beneficiaries under the Florida Retirement System. The process of sending out the retiree packets is automated, so that a packet is sent to every retiree and beneficiary when they are first entered into the system. Pursuant to the Division's regular practice, Mrs. Kirkley would have been sent the retiree packet in October 1995, when she was added to the system as Mr. Mosser's beneficiary. The Division also sends retirees and beneficiaries an annual newsletter, and the Health Insurance Subsidy was discussed in the 1995 and 1996 newsletters. Mrs. Kirkley received a Statement of Retirement Benefit Payments, as Mr. Mosser's beneficiary, each July, December, and January. This statement includes a separate entry for the Health Insurance Subsidy, with the amount of the subsidy noted; Mrs. Kirkley would have been aware of this entry because the Statement of Retirement Benefit Payments that she had been receiving on her own account would have shown an amount paid as her Health Insurance Subsidy. Mrs. Kirkley received her first statement in December 1995, and it would have been apparent from the statement that no amount was included for the Health Insurance Subsidy. Mrs. Kirkley does not recall having any direct contact with the Division between the time she submitted her application for the retirement benefit as Mr. Mosser's beneficiary and late September 1997, when she called the Division to request that the monthly check be electronically deposited in her bank account. During the conversation in September 1997, the Division's representative advised Mrs. Kirkley that she was entitled to receive a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse, in addition to the monthly retirement benefit she received as Mr. Mosser's beneficiary. The representative told Mrs. Kirkley that she would send her an application for the Health Insurance Subsidy, which the representative did in September 1997. Mrs. Kirkley completed the application she received from the Division and sent it to the Division with a cover letter dated October 17, 1997. The application required certification of health insurance coverage, which Mrs. Kirkley satisfied by attaching a copy of her Medicare Health Insurance card. Mrs. Kirkley did not hear anything from the Division for quite a long time. She contacted the Division and was told that they had not received her application for the Health Insurance Subsidy. The Division sent her another application form, which she completed and sent to the Division in January 1998, and she began receiving a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse; she also received retroactive benefits effective July 1997 through December 1997, a period of six months prior to January 1998. The Division eventually located Mrs. Kirkley's October 1997 application, and it advised her in a letter dated April 6, 1998, that she would receive retroactive Health Insurance Subsidy payments for an additional three months, moving the effective date of her entitlement to the benefits back to April 1997. Including the retroactive benefits she received, Mrs. Kirkley has been receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse since April 1997. She also had the benefit of Mr. Mosser's May and June 1995 Health Insurance Subsidy, which were paid by the Division because it was not aware that Mr. Mosser was deceased. Mrs. Kirkley seeks to recover an additional $1890.00 in retroactive Health Insurance Subsidy payments as Mr. Mosser's surviving spouse, which is the difference between the total Health Insurance Subsidy payments she has received and the total Health Insurance Subsidy payments she would have received had the benefits been paid to her retroactive to Mr. Mosser's death (21 months x $90.00 per month = $1890.00). Summary The evidence presented by Mrs. Kirkley is insufficient to establish her entitlement to retroactive Health Insurance Subsidy payments from July 1995 to March 1997. It is uncontroverted that she submitted her application for the Health Insurance Subsidy with her certification of health insurance coverage in October 1997 and that the Division paid retroactive Health Insurance Subsidy payments for the six months prior to the date it received the application. In addition, Mrs. Kirkley has not presented sufficient evidence to establish that the Division should be required to pay her the additional retroactive Health Insurance Subsidy payments because it failed to send her an application until September 1997. The Division did not make any specific representations to her regarding her entitlement to the Health Insurance Subsidy payments until September 1997, and she failed to establish by the greater weight of the credible evidence that she did not receive any general information from the Division that included information regarding the Health Insurance Subsidy. In addition, Mrs. Kirkley knew or should have known in December 1995 that she was not receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse, when she received her first statement detailing the components of her gross monthly benefit as Mr. Mosser's beneficiary, and she could have made inquiry of the Division at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order dismissing the Petition for Review of Final Agency Action filed by Mary J. Mosser, now known as Mary J. Kirkley. DONE AND ENTERED this 20th day of November, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 20th day of November, 2001.
The Issue The issue is what is the correct amount of workers’ compensation reimbursement to Aventura Medical Center for emergency services rendered to patient J.R. for a work-related injury?
Findings Of Fact Petitioner, Guarantee, is a carrier within the meaning of Subsections 440.02(4) and (38), Florida Statutes, and Florida Administrative Code Rule 69L-7.602(1)(w). Respondent, the Department, is charged with the review and resolution of disputes regarding the payment of providers by carriers for medical services rendered to injured workers. The Department has exclusive jurisdiction to decide reimbursement disputes. § 440.13(7) and (11)(c), Fla. Stat. Intervenor, Aventura, is a health care provider within the meaning of Subsections 440.13(1)(h), Florida Statutes. Aventura is an acute care hospital located in Aventura, Miami- Dade County, Florida. On May 27, 2009, Aventura provided emergency services to the patient J.R., a 41-year-old male, who was injured at his place of work. J.R. was examined by Aventura’s emergency department physician. He received two Computed Tomography (“CT”) scans, one of the abdomen and one of the pelvis. He also received a urinalysis, a complete blood count (CBC), and an X-ray of his left side and ribs. J.R. was discharged after these tests. Aventura’s total charges for J.R.’s outpatient emergency services were $9,877.47. Aventura submitted its claim for reimbursement using the standard “uniform billing” form, UB-04. The UB-04 sets out each service provided to J.R., the individual charge for each service, and the total charge. The individual services on the UB-04 submitted for patient J.R. are listed as follows: comprehensive metabolic; assay lipase; amylase syrum; automated hemocram; urinalysis; X-ray of the ribs and chest; X-ray of the abdomen; contrast CT scan of the pelvis; contrast CT scan of the abdomen; the emergency department visit itself, and low osmolar contrast media (LOCM). Aventura’s claim was received by MCMC, an organization described as a “third-party administrator,” and was referred in turn to Qmedtrix. Qmedtrix is a medical bill-review agent located in Portland, Oregon. Qmedtrix performs bill review by referral from carriers and third-party administrators, and performed a bill review for Guarantee of the bill submitted by Aventura. For its compensation, Qmedtrix is paid a percentage of the difference, if any, between the amount billed by the facility and the amount paid by the carrier. Following Qmedtrix’ review, Aventura received a check from Guarantee in the amount of $6,987.21, along with an “Explanation of Medical Benefits” review (EOBR), which is required to be sent along with the bill payment. The EOBR sets out the 11 individual components of Aventura’s claim, and indicates that the first nine were approved for reimbursement at 75 percent of the charge billed by Aventura. The tenth component is the charge for the emergency department visit itself. For that charge, Aventura billed $722.00, of which 75 per cent would be $541.50. The EOBR indicates the corresponding 25 percent discount from billed charges ($180.50) under a column entitled “MRA,” and indicates further that an additional reduction of $143.28 was applied, leaving an approved payment of $398.22 for the emergency room component of the claim. The additional reduction of $143.28 is under a column entitled “Ntwk Redc,” and the narrative explanation under the total payment states, ”The network discount shown above is based on your contract with the network.” Guarantee conceded at hearing that there was no contract applicable to the claim. The eleventh and last component is the charge for the LOCM, which was completely disallowed with the explanation, “Correction to a Prior Claim.” The EOBR also has references to “convalescent care” and “PIP days,” neither of which apply to Aventura’s claim. The EOBR indicates a “procedure code” of 99283. The UB-04 submitted by Aventura also used the code 99283. This code is among five codes that are used by hospitals to bill emergency department visits based on “level” of intensity rendered. These codes are taken from the American Medical Association’s Current Procedural Terminology (or CPT), a coding system developed for physician billing, not for hospitals. Over the years, these CPT codes were adopted by hospitals for billing emergency department visits. Emergency department services are billed with CPT codes 99281 through 99285. After receiving the payment and EOBR, Aventura timely filed a Petition for Resolution of Reimbursement Dispute, with attachments, to the Department. Aventura alleged in its Petition that the correct reimbursement amount owed was $7,408.10, leaving an underpayment of $420.89. Qmedtrix, acting as Guarantee’s representative, then filed Guarantee’s Response to Petition for Resolution of Reimbursement Dispute and attachments with the Department. Attached to the Response was a letter from Mr. von Sydow dated November 9, 2009. The letter asserted that the correct payment to the hospital (Aventura) should be determined on an average of usual and customary charges for all providers in a given geographic area, rather than the hospital’s usual and customary charges. As authority, Mr. von Sydow cites the case of One Beacon Insurance v. Agency for Health Care Administration, 958 So. 2d 1127 (Fla. 1st DCA 2007). The letter also requested that the Department “scrutinize the bill in question in order to determine, first, whether the hospital in fact charged its usual charge for the services provided and, second, whether the billed charges are in line with the customary charges of other facilities in the community.” The letter further alleges that the hospital “upcoded” the emergency room visit, billing using CPT code 99283, asserting that the proper billing code should have been 99282. The letter concludes that the amount paid, $398.22, for the emergency department visit is closer to the “usual and customary” charges that Qmedtrix asserts, on behalf of Guarantee, is applicable to the claim. On November 18, 2009, the Department issued its Determination. The Determination states in pertinent part: The 2006 HRM, Section 12.,A., vests specific authority in the carrier to review the hospital’s Charge Master to verify charges on the itemized statement and to disallow reimbursement for specifically itemized services that do not appear to be medically necessary. No documentation submitted indicates the carrier elected to exercise this option. Moreover, the carrier did not allege that any service was deemed not “medically necessary” or that the charges present on the DWC-90 failed to match the charges on the provider’s Charge Master. Therefore, the OMS finds the charges billed by the hospital are the hospital’s usual and customary charges. The 2006 HRM provides for reimbursement of emergency room services at seventy-five percent (75%) of the hospital’s usual and customary charges. Whereas, the carrier failed to substantiate is [sic] adjustments and disallowances of reimbursement on the EOBR and the hospital’s billed charges are accepted as the hospital’s billed charges are accepted as the hospital’s usual and customary charges, the OMS determines correct total reimbursement equals $7,408.10 ($9,877.47 x 0.75). The determination letter also informed Guarantee of its right to an administrative hearing. Guarantee timely filed a Request for Administrative Hearing, which gave rise to this proceeding. CODING FOR J.R.’S EMERGENCY SERVICES As mentioned above, Aventura reported the emergency department visit using CPT Code 99283. No one from the hospital testified but Aventura’s expert, Allan W. March, M.D., reviewed Aventura’s hospital record for J.R. Dr. March is a graduate of Dartmouth College and Johns Hopkins University Medical School. He has extensive experience in, among other things, hospital physician practice and utilization review. Dr. March describes utilization as the oversight of medical care to affirm that it is appropriate, cost-effective, and medically necessary. Dr. March has worked as an emergency department physician and has personally treated upwards of 5,000 workers’ compensation patients. Dr. March testified on behalf of Intervenor and Respondent. Dr. March described J.R. from the hospital record as follows: This is a 41-year-old male who was kicked in the flank one week prior to his presentation to the emergency department, while engaged in a fight, and was seen immediately prior to his appearance in the emergency department by a workers’ compensation physician, who referred the patient to the emergency department noting a stat referral, meaning that he wanted that patient evaluated within the hour. Dr. March reviewed Aventura’s hospital record for J.R. to analyze whether Aventura appropriately used CPT code 99283. Dr. March explained that Aventura’s selection of CPT code 99283 for the UB-04 was, in all likelihood, due to a particular reference in J.R.’s patient record. Specifically, in that section of the record indicating “Permanent Medical Record Copy” at the bottom of each page, page 6 reflects an entry made on May 29, 2009, which was two days after the services were rendered. The May 29, 2009, entry was made by the emergency physician to assign a level for emergency physician services, and indicates “ER LEVEL III.” Although the “level” reference is for physician services and not for facility services, it would have been used by Aventura’s hospital coder in the absence of an emergency department charge sheet adopting the widely used guidelines from the American College of Emergency Physicians (ACEP Guidelines).” Aventura used an alternate methodology of determining the severity level of the patient, in which the coder would have used the complexity of the medical evaluation by the physician. Under the ACEP guidelines, the CPT code level assigned is always the highest level at which a minimum of one “possible intervention” is found. In this case, Dr. March determined that two CT scans were ordered by the physician and performed by the hospital, which substantiates the use of a 99284 code under the ACEP Guidelines. Thus, Dr. March determined that Aventura could have justified the use of CPT code 99284, which is higher than the 99283 CPT code assigned by Aventura, had the ACEP guidelines been used. Dr. March further explained that the separate charge for the emergency visit is intended to compensate the hospital for “evaluation and Management” costs not captured in other line items. According to Mr. March, the separate charge does not duplicate charges for specific procedures rendered, such as a CT scan. The claim submitted by Aventura was sent to Qmedtrix for a bill review. Its data elements were first entered into Qmedtrix’ proprietary bill-review software known as “BillChek.” The software placed Aventura’s claim on hold for manual review. The claim was then manually reviewed by Mr. von Sydow, Director of National Dispute Resolution for Qmedtrix. Although his educational background is in law, Mr. von Sydow is a certified coder certified by the American Health Information Management Association (AHIMA). Mr. von Sydow determined in his bill review that Aventura should have used code 99282 instead of 99283. Mr. von Sydow supported his conclusion that CPT code 99282 is the appropriate code for the emergency department visit by comparing the procedure codes and diagnosis codes reported by the hospital with examples of appropriate billing for emergency department services in the CPT code handbook. Mr. von Sydow concluded that the hospital’s billing with CPT code 99283 was not appropriate and that the hospital should have billed with CPT code 99282. Mr. von Sydow also calculated that while the hospital billed $722 with CPT code 99283, its usual and customary charge for a visit billed with 99282 is $600. Moreover, Mr. von Sydow referenced a study by American Hospital Association (AHA) and AHIMA, which suggests that hospitals should count the number and kind of interventions to approximate the CPT factors, but that a hospital should not include in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. He further acknowledged that the federal Centers for Medicare and Medicaid Services (CMS) allow hospitals to use their own methodology in applying the CPT codes. David Perlman, M.D., received his undergraduate degree from Brown University and his medical degree from the University of Oregon. He has considerable experience as an emergency room physician. For the past six years, he has worked for Qmedtrix initially doing utilization review and as its medical director since 2005. Dr. Perlman testified on behalf of Guarantee. Dr. Perlman is also familiar with the ACEP guidelines referenced by Dr. March and the AHA/AHIMA study relied upon by Mr. von Sydow. He is also familiar with the CPT code handbook. Dr. Perlman suggested that the use of the ACEP guidelines could result in reimbursement essentially already provided in a separate line-item. He agrees with the methodology recommended by the AMA/AHIMA study. That is, counting the number and kind of interventions or procedures to approximate the CPT book’s factors to consider in selecting the code billed for emergency department services, but not including in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. In Dr. Perlman’s opinion, J.R.’s injuries supported the assignment of CPT code 99283 as designated by Aventura. Dr. Perlman agreed with Dr. March’s opinion that Aventura could have billed at a higher level (99284), but not based on the number and kind of interventions or procedures. Dr. Perlman instead referenced examples in the ACEP guidelines. Dr. Perlman acknowledged that hospitals are free to use the ACEP guidelines and that many hospitals do so. Both Drs. March and Perlman are of the opinion that Aventura’s use of CPT code 99283 was appropriate, and further agreed that Aventura could have assigned the higher code of 99284. Therefore, coding J.R.’s emergency department visit as 99283 by Aventura was appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers' Compensation, enter a Final Order requiring Petitioner to remit payment to Aventura consistent with the Determination Letter dated November 18, 2009, and Section 440.13(7)(c), Florida Statutes. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue Whether the Department's proposed amendment of Rule 38F- 7.020, Florida Administrative Code, constitutes an invalid exercise of its delegated legislative authority under Section 120.52(8), Florida Statutes, [1996 Supp.], or whether the authority specified in the proposed rule is sufficient for the Department to adopt the proposed rule?
Findings Of Fact The Florida Society of Anesthesiologists is a voluntary, nonprofit association comprised of individual members, each of whom is licensed in the State of Florida to practice medicine. Petitioner, Robert A. Guskiewicz, M.D., is a licensed medical doctor in the State of Florida specializing in anesthesia. Pursuant to Section 440.13(12), Florida Statutes, a three-member panel is charged with the responsibility of determining the schedules of maximum reimbursement for physician treatment of workers' compensation patients. In March 1996, the three-member panel convened and adopted a resource-based relative value scale ("RBRVS") reimbursement system, which, on or about January 3, 1997, the Department published notice of its intent to embody in proposed Rule 38F-7.020, in Vol. 23, No. 1 of the Florida Administrative Law Weekly. A copy is attached and incorporated herein by reference. The proposed Rule lists Sections 440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), 440.13(14), and 440.591, Florida Statutes, as specific authority. The proposed Rule implements Sections 440.13(6), 440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), and 440.13(14), Florida Statutes. There are no other facts necessary for determination of the matter.
The Issue The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
Findings Of Fact At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department. By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program. The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.) The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology. After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3) By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit." By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a "major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code: The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related. The letter advises Petitioner of his right to a hearing. Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety: After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted]. Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology. On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College. By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084. By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related. In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree. To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/ The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related. The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each). Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related. Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3). when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related. Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case. RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Attorney Lisa S. Santucci Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Peter T. Campbell, III 445 Clarewood Boulevard Titusville, FL 32796
Findings Of Fact In 1975 the Florida Legislature passed the Medical Malpractice Reform Act, Chapter 75-9, Laws of Florida, now codified in Chapter 768, Florida Statutes. Part of this legislative package included the creation of the Fund. This legislation was passed in response to a medical malpractice insurance crisis which arose when the primary underwriter for the Florida Medical Association sought to stop issuing medical malpractice policies in Florida, thus making it difficult, if not impossible, for physicians or hospitals to obtain medical malpractice insurance coverage at reasonable rates. As a result of this problem, many physicians began to practice defensive medicine, curtail or abandon their practices or practice without coverage of any kind. The Fund is a private not-for-profit organization, participation in which is totally voluntary for its member health care providers. Insofar as Petitioners are concerned, membership in the Fund is but one of several options available to provide legally required evidence of financial responsibility in order to obtain licensure as a hospital facility in Florida. In fact, of the approximately 260 hospitals in Florida, only 125 satisfy their financial responsibility requirement via membership in the Fund. Physicians, hospitals, health maintenance organizations and ambulatory surgical centers who become members of the Fund must maintain at least $100,000 in primary professional liability insurance. Membership in the Fund grants to each participant a limitation of liability above the $100,000 in primary coverage. To the extent that any settlement or judgment exceeds the primary coverage of the participant, it is paid by the Fund without limitation. The Fund is operated subject to the supervision and approval of a board of governors whose membership is required by law to consist of representatives of the insurance industry, the legal and medical professions, physicians' insurers, hospitals, hospitals' insurers and the general public. The Department is charged by statute with certain regulatory functions concerning the Fund. The base fee for Fund membership is set by statute at $500 for physicians, after an initial $1,000 enrollment fee for the first year of participation, and at $300 per bed for hospital members. The statute requires the Department to set additional fees based upon the classifications of health care providers contained in the statute. In the event that base fees are insufficient to pay all claims asserted against the Fund for a given Fund year, the Department is empowered, upon request of the Board of Governors of the Fund, to order additional assessments against Fund participants to meet any such deficiency. Under the original legislation, all classes of health care providers could be assessed unlimited amounts to make up any deficiencies. As a result of legislative amendments in 1976, however, the amount which participants, other than hospitals, could be assessed was limited to the amount each Fund member had paid to join the Fund for that particular coverage year. 1976 legislative amendments also required that each fiscal year of the Fund be operated independently of preceding fiscal years, and further required that occurrences giving rise to claims in a particular Fund year be paid only from fees or investment income on these fees collected for that particular year. Thus, it is entirely possible for the Fund to experience deficits in a given year, and yet hold surplus funds for other years. The dispute in these consolidated proceedings arises from assessments for deficits incurred for the Fund years 1977-1978 and 1978-1979. Each of the hospitals named as Petitioners in the Petition for Administrative Proceedings in Case No. 82-776 were members of the Fund during the Fund year 1977-1978. Each of the hospitals named in the style and listed on Exhibit "A" to the Amendment to Petition for Administrative Proceedings in Case Nos. 82-530 and 82-571 were members of the Fund during the Fund year 1978-1979. On October 31, 1981, the Fund certified to the Department a deficiency in the amount of $1,350,672 for the Fund year 1977-1978. On January 18, 1982, the Fund certified to the Department an additional deficiency for the Fund year 1977-1978 in the amount of $1,759,591. On January 18, 1982, the Fund certified to the Department a deficiency of $13,935,927 for the Fund year 1978-1979. On January 13, 1982, the Department issued an "order" assessing various classes of health care providers the deficiency originally certified by the Fund for the Fund year 1977-1978. The "order" of January 13, 1982, was amended by the "order" of February 1, 1982, for the Fund year 1977-1973. The amended order contained the same dollar amount of assessments, but altered the amount charged to various classes of Fund members. On February 17, 1982, the Department issued its "order" granting the second assessment for the Fund year 1977-1978. On January 22, 1982, the Department issued its "order" granting the assessment for the 1978-1979 Fund year. The Department has not promulgated any rules pursuant to Chapter 120, Florida Statutes, pertaining to its regulation of or duties in conjunction with the Fund under Section 768.54, Florida Statutes. As members of the Fund, each of the Petitioners' interests are substantially affected by the Orders of January 13, 1982; January 22, 1982; February 1, 1982; and February 17, 1982. For the Fund year 1977-1978 the total assessment ordered by the Department is $3,110,263. The total assessment for the Fund year 1978-1979 is $13,935,972. For the Fund year 1977-1978, physicians and professional association members are proposed to be assessed $1,730,207. During the Fund year 1977-1978, hospital members paid into the Fund, exclusive of interest earned on the fees, the amount of $5,292,498. For the Fund year 1977-1978, physicians and professional association members paid into the Fund the sum of $2,326,541. For the Fund year 1978-1979, hospital members paid into the Fund, exclusive of interest earned on their fees, the sum of $5,627,553. Interest earned through December 31, 1981, on these fees is $1,725,845. For the Fund year 1978-1979, physicians and professional association members paid into the Fund, exclusive of interest earned on their fees, the sum of $2,411,205. Interest earned through December 31, 1981, on the fees contributed by physicians and professional associations is $739,463. For the Fund year 1977-1978, the proposed assessments against hospital members of the Fund is $1,374,827. For the Fund year 1978-1979, the Fund retained the services of an independent actuarial firm to study and recommend appropriate additional fees to charge its members. The following table reflects the statutory base fees, the fees recommended by the actuary, the fees sought by the Fund and the fees ordered by the Department of Insurance for the 1977-1978 Fund year. Base Fees Actuary's Additional Additional Paid Recommended Fees Fees Pursuant Additional Requested Ordered to Stat. Fees by FPCF By DOI Class I Physicians $ $ $ $ Dade/Broward Co. 500.00 2,233.00 2,233.00 -0- Rest of State 500.00 l,749.00 1,749.00 -0- Class II Physicians Dade/Broward Co. 500.00 4,420.00 4,420.00 -0- Rest of State 500.00 3,549.00 3,549.00 -0- Class III Physicians Dade/Broward Co. 500.00 12,619.00 12,619.00 -0- Rest of State 500.00 10,297.00 10,297.00 -0- Hospitals (per occupied bed) 300.00 222.00 222.00 -0- Ambiatory Surgical Centers -0- 22.00 22.00 -0- (per 100 patients) Health Maintenance Organizations -0- 150.00 150.00 -0- (per 100 subscribers) Professional -0- 20 percent of additional (SAME) -0- fee to be paid by each individual member For the Fund year 1978-1979, the Department made no independent actuarial study of the recommended fees proposed by the independent actuary employed by the Fund, and no member of the Casualty Actuarial Society evaluated the Fund's recommendations on behalf of the Department. The independent actuary employed by the Fund was the only actuary who presented any evidence at the hearing conducted by the Department on the Fund's fee increase request for the Fund year 1978-1979. Each year since the Fund year 1977-1979 the Fund has employed the services of an actuary who, among other things, projected the expected losses above the claims previously paid and reserves established for known claims. These expected losses are reported as IBNR ("incurred but not reported") for each Fund year. The IBNR projected by the actuary employed by the Fund in the most recent report (October 1981) for the Fund year 1977-1978 is $6,306,036, and for the Fund year 1978-1979 is $15,965,324. The Department computed the portion of the assessment to be paid by the different classes of health care providers for the Fund year 1977-1978 based upon an approach known as the "indicated rate method." It is concluded from the record that this method is the most feasible of all suggested alternatives under existing law for reflecting the statutory classifications and, at the same time, providing immediate funds necessary to meet all claims against the Fund. This method is represented by the following formula: The Department started with rates which should have been charged each class in 1981-1982. This is called the "indicated rate by class." (The indicated rates were taken from the October, 1980 report by the Fund actuary.) The Department then applied the following formula for each class: Indicated Rate by Class x Number of Members in the Class = Total indicated fees by Class Total Indicated Fees by Class - Total Indicated Fees for ALL Classes Percentage of Indicated Fees by Class. Percentage of Indicated Fee by Class x Total Expected Loss for ALL Classes Expected Loss by Class. (Expected loss is all losses for the fund year included claims previously paid, reserves established on claims asserted and IBNR (incurred but not reported) Expected Loss by Class - Actual Fees paid by Class = Potential Loss Assessment by Class. Potential Loss Assessment by Class - Potential Loss Assessment for ALL Classes Percentage of Potential Loss Assessment by Class. Percentage of Potential Loss Assessment by Class x Total Assessment to be Ordered by the DOI = Amount of Assessment by Class. The following chart shows the amount each class would have paid under the "indicated rate method" for the Fund year 1977-1978, and the amount actually proposed to be assessed in the "orders" of the Indicated Rate Assessment Department: Actual Assessment a) Class I Physicians $ 146,487.00 $ 138,000.00 b) Class II Physicians 213,502.00 438,297.00 c) Class III Physicians 2,195,383.00 813,048.00 d) Hospitals 521,560.00 1,374,827.00 e) HMO 614.00 Surgical Centers 1,381.00 79,953.00 Professional Associations 28,336.00 Based upon the "indicated rate method" and based upon the application of Section 768.54, Florida Statutes, employed by the Department, assessments for the Fund year 1977-1978 which would otherwise be attributable to physician members of the Fund in the approximate amount of $1,500,000 were not charged to any class of physician. Based upon the "indicated rate method" and based upon the application of Section 768.54, Florida Statutes, employed by the Department, assessments for the Fund year 1978-1979 otherwise attributable to physician members of the Fund in the approximate amount of $9,000,000 were not charged to any class of physicians. The assessments described in the "orders" of the Department for the Fund year 1977-1978 which could not be applied to physician members, based upon the Department's interpretation of Section 768.54, Florida Statutes, were spread among the other classes of health care providers based upon their percentage of "expected losses." The Petitioners in this case, each of whom are members of the Fund, consist of 30 government hospitals, 43 private, nonprofit hospitals, and seven private, for-profit hospitals. During the Fund years 1977-1978 and 1978-1979, the Fund consisted of the following classes and numbers of members: 1977-1978 1978-1979 a) Class I Physicians 1392 1516 b) Class II Physicians 814 971 c) Class III Physicians 1584 1690 d) Hospitals 120 130 e) HMO 2 3 f) Surgical Centers 11 14 g) Professional Associations 572 855 The "orders" of the Department dated January 13, 1982; January 22, 1982; February 1, 1982; and February 17, 1982, were the first time any member of the Fund has been assessed under Section 768.54, Florida Statutes. The fees paid into the Fund; the investment income earned through December 31, 1981, on such fees; the expenses incurred through December 31, 1981; the amounts paid on claims through December 31, 1981; reserves established through and the IBNR for each Fund year for 1975-1976 through 1980-1981 are reflected on the table on page 10a. (IBNR figures are projections of future losses prepared by the Fund's actuary in October 1981.) The rates applicable to physicians and hospital members of the Fund for the years 1977-1978 and 1978-1979 were the base fees provided in Section 768.54, Florida Statutes. No additional fees were set for those Fund years. The rate order for the 1978-1979 year entered by the Department on June 9, 1978, was not appealed. The Fund in fact experienced deficits in both Fund years in controversy in this proceeding. The Fund certified to the Department the amount of its projected deficit for the years in question. The amount of money ultimately certified by the Fund to the Department accurately reflects the amounts derived from the following formula: FUND YEAR: 1975-1976 1976-1977 1977-1978 FEES PAID $2,928,672 $6,303,257 $7,467,605 INTEREST EARNED 1,475,41 3,000,118 2,592,179 ADMINISTRATIVE EXPENSES (54,846) (95,002) (148,113) NET FUNDS AVAILABLE 4,349,227 9,208,373 9,911,671 TO PAY LOSSES LOSSES PAID TO DATE (3,004,273) (6,869,395) (8,271,696) INDEMNITY EXPENSES (300,334) (343,433) (391,858) RESERVED LOSSES (971,733) (4,249,604) (3,663,348) RESERVED EXPENSES (57,584) (111,466) (172,869) PRESENT SURPLUS/DEFICIT (14,697) (2,365,525) (2,588,100) LOSSES INCURRED NOT YET REPORTED (IBNR) (AS OF 6/30/81) (1,189,136) (3,878,887) (7,970,235) FUND YEAR: 1978-1979 1979-1980 1980-1981 FEES PAID $8,060,374 $9,836,157 $11,225,275 INTEREST EARNED 2,543,698 2,589,547 1,882,319 ADMINISTRATIVE EXPENSES (128,556) (279,838) (406,641) NET FUNDS AVAILABLE 10,475,506 12,145,866 12,700,953 TO PAY LOSSES LOSSES PAID TO DATE (9,760,650) (3,410,358) (37,500) INDEMNITY EXPENSES (532,197) (206,616) (32,619) RESERVED LOSSES (13,782,271) (6,445,000) (3,750,000) RESERVED EXPENSES (267,932) (342,787) (114,417) PRESENT SURPLUS/DEFICIT (13,867,544) (1,741,105) (8,766,417) LOSSES INCURRED NOT YET (14,979,237) (28,295,428) (51,500,564) REPORTED (IBNR) (AS OF 6/30/81) FUND YEAR: TOTALS FEES PAID $45,821,340 INTEREST EARNED 14,083,262 ADMINISTRATIVE EXPENSES (1,113,006) NET FUNDS AVAILABLE 58,791,596 TO PAY LOSSES LOSSES PAID TO DATE (31,353,872) INDEMNITY EXPENSES (1,837,057) RESERVED LOSSES (32,861,956) RESERVED EXPENSES (1,067,055) PRESENT SURPLUS/DEFICIT (8,328,344) LOSSES INCURRED NOT YET (107,813,487) REPORTED (IBNR) (AS OF 6/30/81) Total fees paid during the Fund Year + Investment Income attributable to the Fund Year Expenses allocated to that Fund Year Amount paid on claims for that Fund Year Amount reserved for all known claims for that Fund Year. The Department entered orders levying the assessments on January 13, 1982; January 22, 1982; February 1, 1982; and February 17, 1982. The parties to this proceeding stipulated that the assessments entered by the Department for 1977-1978 and 1978-1979 are to be considered to be proposed agency action as to such parties. The Department limited the amount assessed against any physician member to an amount equal to the annual membership fee paid by the physician for the year giving use to the assessment. According to the "orders" of the Department for the Fund year 1977- 1978, Class III physicians' share of the assessment, based upon the assessment formula utilized, was in excess of the amount of membership fees paid by that group, and the balance was spread over the rest of the classes of health care providers. According to the "orders" of the Department for the Fund year 1978- 1979, Class I, II, and III physicians' share of the assessment, based upon the assessment formula utilized, was in excess of the amount of membership fees paid by those groups, and the balance was spread among those health care providers described in Section 768.54(1)(b)l.,5.,6., and 7., Florida Statutes. The Department, by order dated June 9, 1978, denied the Fund's request for additional fees for the year 1978-1979. In April 1981, at the request of the Department, the Fund filed a "Retrospective Rating Plan." This plan provided that at such time as the Fund dropped below 25 percent of the original fees paid in any fund year an assessment would be triggered. The plan further provided for the assessment to be based upon all settlements or final judgments entered but unpaid at the time of the assessment, and all reserves established by the Fund at the time of the assessment. This "Retrospective Rating Plan" was approved by the Department, but not adopted pursuant to Chapter 120, Florida Statutes. Although the Fund sought to amend the plan both before and after the assessments now at issue, the original plan remained in effect at all times material to this cause. Although Petitioners have not disputed the amount of the reserves set by the Fund, such reserves constitute a substantial portion of the assessment amounts requested by the Fund. The Department has not made any evaluation of the accuracy of the case reserves, nor has the Department made any analysis of the method employed by the Fund in setting case reserves. There was some evidence that the cash shortages experienced by the Fund for the Fund years 1977-1978 and 1978-1979 may have been caused in part by the manner in which the Fund has paid claims. In 1976 the Florida Legislature limited the amount which the Fund could payout on claims to $100,000 per person, per year. In addition, the law provides that reasonable attorneys' fees and costs shall be paid to a successful claimant within the first 90 days following a judgment or settlement. In most instances, the Fund does not inquire into the fee arrangement between plaintiffs and their attorneys. Moreover, no claim for attorneys' fees is required to be submitted to the Fund or the trial court to set a reasonable percent fee for such services. The Fund has indicated that for claims paid for the Fund years 1977-1978 and 1978-1979, the Fund simply assumed that attorneys' fees and costs equalled 40 percent of the amount of the settlement or judgment. In most cases, the Fund does not consider any portion of the attorneys' fees as having been paid by the primary insurance carrier. In some instances, it appears that payments made by the Fund may have disregarded the $100,000 per person, per year payout limitation, and in other instances the Fund has been ordered to pay amounts in excess of the statutory limit and has not pursued an appeal of such orders. In still other instances the Fund has purchased annuities to fund settlements or judgments, the cost of which annuities exceeded the $100,000 payout limitation. The Fund does not consider such payments to be subject to the payout limitation although no rights of ownership in the annuities are retained by the Fund. It is possible that the cumulative effect of these practices has been significant. Petitioners adduced evidence estimating "excess payments" by the Fund for 1977-1978 over the statutory limit could be as high as $2,684,737. For the Fund year 1978-1979 these "excess payments" could be as high as $4,827,690. Under the Department's application of Section 768.54, Florida Statutes, no physician member will again be assessed for the Fund years 1977- 1978 and 1978-1979. Yet, based upon the latest estimates by the Fund's consulting actuary, additional claims for those two years which have not yet been reported could reach as high as $22,949,472. Under the Department's construction of the statute, hospital members will have to pay all of these additional losses, if the actuary's projections prove correct.
The Issue Whether the Petitioner, Kellie Brown, on behalf of her minor son, Brandon Brown, is entitled to payment of the Health Insurance Subsidy on the retirement account of Corporal Arthur "Donnie" Brown, deceased, for the period of February 1, 1994, through and including September 1996.
Findings Of Fact Kellie M. Brown (Petitioner) is the natural mother and guardian of Brandon D. Brown, a minor child, whose deceased father was Donnie Brown. At the relevant times, Donnie Brown was employed by the Orange County Sheriff's Office (Sheriff's Office) as a deputy with the rank of Corporal, and was a compulsory member of the Florida Retirement System (FRS). On or about January 16, 1994, Cpl. Brown disappeared from public view and did not report for duty with the Sheriff's office. His last day of work was listed as January 15, 1994. He was subsequently terminated from his position for failure to report for duty. His body was later found on March 15, 1994, and after examination by the county medical examiner, it was determined that his date of death was January 15, 1994. Based on this determination, survivorship benefits became available to Brandon Brown as if his father had died while still employed with the sheriff's office. The Petitioner is the former spouse of the deceased. After the discovery of the body, the Sheriff's office offered to assist Petitioner in the completion and transmission of the necessary paperwork to obtain available benefits. The Sheriff's Office enrolled Brandon under its health insurance plan for one year at no cost to the Petitioner. In March 1994, Petitioner visited the personnel office of the Sheriff's Office. She was given many forms and applications to sign in order to obtain benefits for her son. Petitioner testified that one of the forms in the packet of material was the Health Insurance Subsidy (HIS) application form of the Respondent. She claimed it was given to her in a manila folder by Barbara Hill, a personnel specialist with the Sheriff's Office. Petitioner later had another conversation with Ms. Hill in which the Petitioner wanted to know where the completed form was and insisted that the HIS form was in the material given to her by Ms. Hill. Petitioner then stated that Ms. Hill called the offices of the Respondent in Tallahassee and was told that her son was not eligible for the HIS payment. Thereafter, Petitioner stated that she did not pursue the issue. On behalf of her minor son, the Petitioner applied for and began receiving a FRS retirement benefit on the account of Cpl. Brown, effective July 1994 and retroactive to February 1994. After Brandon's name was added to the retired payroll, in July 1994, Petitioner was notified by mail from the Respondent that Brandon was also eligible for payment of a HIS, which is a benefit separate from the retirement benefit that is paid to retirees and their beneficiaries to help offset the cost of health insurance. Petitioner did not return the HIS application form. Notification of new retirees after their name has been added to the retired payroll about their eligibility for the HIS is the normal and customary practice of Respondent. The HIS application form of Respondent is not given to the employing agency. Therefore, the Sheriff's office would not have a copy of the form to give to Petitioner. Instead, the HIS form is sent by the Respondent directly to the retired member or the beneficiary after the actual retirement. The form is sent out at the same time or shortly after the notice to the retiree that he or she has been placed on the retired payroll. Brandon Brown was added to the retired payroll in July 1994, retroactive to February 1994, and the notification letter form was sent to Petitioner in July 1994. The HIS form would have been sent at that time or shortly thereafter. In early 1997, Barbara Hill reviewed the roll of retirees because of a reengineering program instituted by the Sheriff's office. She found three widows who were not being paid the HIS benefits by Respondent, including Petitioner. She contacted all three women at the request of the Sheriff's office. Respondent sent information about the program to the women. As the result of conversations between Petitioner and Barbara Hill of the Sheriff's office, Petitioner was sent an HIS application form by Respondent, which she completed and returned to the Division on April 23, 1997. Brandon was added to the HIS payroll retroactive to October 1996. The amount of the benefit is $51.99 per month. The Sheriff's office has a health insurance subsidy program for its retired members that is similar to the FRS HIS program and is the same dollar amount as the HIS benefit paid by FRS. However, it is paid only to members and not to beneficiaries so that a beneficiary like Brandon would receive the FRS HIS payment but would not receive the Sheriff's Office HIS payment. The Respondent makes regular efforts to notify retirees of the various benefits offered to them under FRS. As it applies to this case, the Respondent issues a pamphlet entitled "After You Retire" on a periodic and ongoing basis. The then current edition was issued in October 1993, and provided on page 7, information about the HIS. The pamphlet stated as follows: The health insurance subsidy (HIS) is a monthly supplemental payment that you may be eligible to receive if you have health insurance coverage. This monthly payment, which you must apply for, is figured by multiplying your total years of creditable service at retirement (up to a maximum of 30 years) by $3. The minimum monthly subsidy is $30 and the maximum is $90. After your name is added to the retired payroll, an application for the health insurance subsidy, Form HIS-1, will be mailed to you. The completed application must be returned to the Division of Retirement within six (6) months of the date your retirement benefits commenced if you wish to receive the subsidy retroactive to your retirement date. If you fail to return the form within six (6) months, retroactive subsidy payments will be limited to a maximum of six (6) months. It is your responsibility to obtain certification of health insurance coverage and apply for the health insurance subsidy. (emphasis in quoted material) The Respondent also issued a "Retiree Newsletter" in December 1994, and informed all retirees about updates to the HIS program. On page 3, the Newsletter stated: The Health Insurance Subsidy (HIS) is an extra payment that is added to your monthly retirement benefit to help you pay the cost of health insurance. To be eligible for receive the HIS payment, retirees must have health insurance, Medicare or Champus. The subsidy payment which you must apply for, is $3 per month for each year of creditable service you had earned at retirement. The minimum monthly subsidy is $30 and the maximum is $90. If you believe you are eligible for the subsidy but are not currently receiving it, you should call or write the Disbursement Section and request Form HIS-1, Health Insurance Subsidy Certification. If you apply for the HIS after you retire, you will receive retroactive HIS payments limited to a maximum of six months, or the number of months you have been retired, if less than six months. (emphasis in quoted material) Petitioner was mistaken in her belief that the application form for FRS HIS benefits was provided to her by the Sheriff's Office in March 1994.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued by the Division of Retirement determining that the Petitioner, Kellie Brown, is not entitled to the payment of the Health Insurance Subsidy for her minor son on the retirement account of Corporal Arthur "Donnie" Brown, deceased, for the period of February 1, 1994, through and including September 1996. RECOMMENDED this 17th day of November, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1997. COPIES FURNISHED: Kellie M. Brown, pro se 12868 Downstream Circle Orlando, Florida 32828 Stanley M. Danek, Senior Attorney Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399 Thomas J. Pilacek, Esquire Thomas J. Pilacek & Associates 601 South Lake Destiny Road Maitland, Florida 32751 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact In 1975, the Florida Legislature passed the Medical Malpractice Reform Act, Chapter 75-9, Laws of Florida, now codified in Chapter 768, Florida Statutes. Part of this legislative package included the creation of the Fund. In 1976, the Legislature enacted Chapter 76-260, Laws of Florida, which amended Section 627.353, Florida Statutes. Subsequently, the provisions of Section 627.353 were renumbered as Section 768.54, Florida Statutes. Section 768.54 was subsequently amended by Chapters 77-64, 78-47, 79-170, 80-328, 82-236 and 83- 206, Laws of Florida. The Fund is a private not-for-profit organization, participation in which is totally voluntary for its member-health care providers. Insofar as Petitioners are concerned, membership in the Fund is but one of several options available to provide legally required evidence of financial responsibility in order to obtain licensure as a hospital facility in Florida. Physicians, hospitals, health maintenance organizations and ambulatory surgical centers who become members of the Fund must maintain at least $100,000 in primary professional liability insurance. Membership in the Fund grants to each participant a limitation of liability above the $100,000 in primary coverage. To the extent that any settlement or judgment exceeds the primary coverage of the participant, it is paid by the Fund without limitation. The Fund is operated subject to the supervision and approval of a board of governors whose membership is required by law to consist of representatives of the insurance industry, the legal and medical professions, physicians' insurers, hospitals, hospitals' insurers and the general public. The Department of Insurance ("the Department") is charged by statute with certain regulatory functions concerning the Fund. For each of the years in question in this proceeding, the initial membership fees charged plus the investment income earned thereon have proven to be inadequate to pay the claims made against the Fund. Section 768.54(3)(c) , Florida Statutes, provides that, in the event the Fund determines that the "amount of money in an account for a given fiscal year is not sufficient to satisfy the claims made against the Fund, `the Department' shall. . . levy [an] assessment against" the members of the Fund. Under the original legislation, all classes of health care providers could be assessed unlimited amounts to make up any deficiencies. As a result of legislative amendments which became effective July 1, 1976, the amount which participants, other than hospitals, could be assessed was limited to the amount each Fund member had paid to join the Fund for that particular coverage year. This limitation was again removed in 1983. For all years at issue in this proceeding, however, a statutory limitation was in effect on the amount physician members of the Fund could be assessed. 1976 legislative amendments also required that each fiscal year of the Fund, which runs from July 1 through June 30, be operated independently of preceding fiscal years, and further required that occurrences giving rise to claims in a particular fund year be paid only from fees or investment income on those fees collected for that particular year. Thus, it is entirely possible for the Fund to experience deficits in a given year, and yet hold surplus funds for other years. On September 19, 1983, the Department of Insurance issued a "Notice of Assessment." Notice of this Notice of Assessment was published in the Florida Administrative Weekly. The Notice of Assessment announced that the Insurance Commissioner intended to authorize the Fund to levy and collect an assessment in the following amounts from those health care providers that were members of the Fund during each respective year: 1976-1977 Membership Year $ 1,633,716 1977-1978 " " 7,843,522 1978-1979 " " 12,545,551 1979-1980 " " 18,673,853 1980-1981 " " 14,363,697 Each of the hospitals named as Petitioners in the Petition for Administrative Proceedings in Case Nos. 83-3381 - 83-3388 were members of the Florida Patient's Compensation Fund during one or more of the fund years described in paragraph 7. On or about July 20, 1983, the Board of Governors of the Fund authorized the Fund to certify a deficit assessment in the following amounts to the Department: 1976-77 Membership Year $ 1,633,716 1977-78 " " 7,843,522 1978-79 " " 12,545,551 1979-80 " " 18,673,953 1980-81 " " 14,363,697 TOTAL $55,060,339 These amounts were in fact certified to the Department. The Department spread these assessments in the Notice of Assessment among the various health care providers as follows: CLASS OF HEALTH CARE PROVIDERS AMOUNT OF ASSESSMENT 1976-77 1977-78 1975-79 1979-80 1980-81 Physicians and Surgeons (a) Class 1 0 394,966 0 0 0 Class 2 0 0 0 0 0 Class 3 0 0 0 0 0 Hospitals 1,600,341 7,231,951 12,496,924 18,539,870 14,255,691 3. HMO 0 4,426 11,795 46,938 34,337 4. Abulatory Surg. Center 1,927 9,481 36,829 87,045 76,669 5. Prof. Assoc. 31,448 202,698 0 0 0 The Department computed the portion of the assessment to be paid by the different classes of health care providers for all years in question based upon an "indicated rate method." This method is represented by the following formula: The Department started with the actuarially indicated rate for each class of health care provider as described in the October, 1982 Actuarial Report prepared by Tillinghast, Nelson, et al. This is called the "indicated rate by class." The Department then applied the following formula for each class: Indicated Rate by Class x No. of Members in the Class Total indicated fees by Class Total Indicated Fees by Class divided by total Indicated Fees for ALL Classes = Percentage of Indicated Fees by Class Percentage of Indicated Fee by Class x Total Expected Loss for ALL Classes = Expected Loss by Class (Expected Loss is ALL losses for the fund year including claims previously paid, reserves established on claims asserted and IBNR (incurred but not reported).) The "indicated rate method" for allocating assessments among the various classes of health care providers was selected by the Department as the method which most fairly reflected the classifications prescribed in Section 768.54(3)(c) , Florida Statutes. The record in this proceeding established that this method is the most feasible mechanism for fairly reflecting classifications established by statute, and, at the same time, providing immediate funds necessary to meet all claims against the Fund. Any difference between the results derived by the rate method reflected in the Notice of Assessment is due to the application of the statutory cap on assessments against physician members, as applied by the Department. The Notice of Assessment issued by the Department allocated the "excess assessments," which could not be applied to physician members because of the limitation on the amount physicians could be assessed among the other classes of health care providers based upon their percentage of "expected losses." The amounts of the assessments sought by the Fund, and described in the Notice of Assessment, were calculated by the Fund by using the following formula: Total fees paid during the Fund Year + Investment Income attributable to the Fund Year + Amounts previously noticed as assessments Expenses allocated to that Fund Year Amount paid on claims for that Fund Year Amount reserved for all known claims for that Fund Year. The fees ordered by the Department and collected by the Fund, plus the interest income generated by such fees, plus the amounts previously assessed for each fund year in question are inadequate to cover claims against the Fund for each of the years in question herein. Petitioners have contested the amount of reserves and the reserving practices of Fund. When a claim is received by the Fund, a claims supervisor is assigned to the file and reviews that file to determine whether the case involves a Fund member, the nature of the claim and other relevant data. If the claims supervisor determines that a reserve is warranted, he recommends a reserve and customarily prepares a report justifying the reserve. The report and recommended reserve are then reviewed by the Claims Manager and the General Manager, who are free to make adjustments in the recommended reserve amount. The file is then taken before the Fund's Claims Committee for review. This committee consists of representatives from the insurance industry, legal profession and hospital industry who are familiar with the current status of medical malpractice trends. The committee reviews the reserve recommendation and may lower, raise or refuse to set a reserve. The Claims Supervisor who recommended the reserve is most often present at the meeting of the Claims Committee for the purpose of answering questions about the file and providing updated information. If the committee approves a reserve, the reserve is carried with the file and no further changes in the reserve occur without committee approval. While the record in this cause shows that in some individual cases there has been inordinate delay in setting a reserve, and that some reserves have been established on a paucity of objective data, there is insufficient evidence from which to conclude either that any established reserve is incorrect, or that the Fund's reserving or claims handling procedures are unreasonable. In fact, the record establishes that the Fund's reserving practices are consistent with those generally accepted in the insurance industry, that these practices have been reasonably applied in setting case reserves, and that the Fund's reserves are not excessive. The record in this cause establishes that, assuming all previous assessments noticed had been collected, there exists, at the time of the hearing, as well as the date of the assessment, a deficiency as indicated below in the Fund's account for each year indicated: 1976 - 77 $ 1,633,716 1977 - 78 7,843,522 1978 - 79 12,545,551 1979 - 80 18,673,853 1980 - 81 14,363,697 In view of the statutory cap on the amounts that may be assessed against physician members of the Fund, the foregoing dollar amounts for assessments for each fund year, and the manner in which they are proposed to be allocated among the remaining classes of health care providers are appropriate. Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
Findings Of Fact Petitioner is a duly licensed nursing home located in Dania, Florida, and is authorized to participate in the Medicaid program. In 1975, Makhlouf Suissa, his wife Lorraine Suissa, and his father-in- law Moses Farkas, purchased 100 percent of the stock of Dania Nursing Home, Inc. The Suissas purchased the said stock with the intention of becoming the owners of the nursing home and personally managing it, which they have done since 1975. Makhlouf Suissa is the assistant administrator, and Lorraine Suissa is the administrator. The Suissas were unaware at the time of their stock purchase that there was any distinction between a purchase of 100 percent of the stock of Dania Nursing Home, Inc., and a purchase of 100 percent of the assets of that corporation for purposes of reimbursement for depreciation and/or interest expense. Petitioner submitted its Medicaid cost reports for the fiscal years ending July 31, 1979, and July 31, 1980. Respondent thereafter made adjustments after conducting audits of the Petitioner's records. Respondent disallowed $1,424 expended by Petitioner during each of the fiscal years in question for a one-quarter page advertisement in the yellow pages of the telephone directory. The ad was not introduced in evidence. Rather, Petitioner's witness testified that the ad stated that Petitioner accepts Medicaid patients and provides physical therapy and 24-hour nursing care. Respondent disallowed $2,260 paid by Petitioner as a professional fee to Moses Farkas for administering the nursing home during the Suissas' vacation and for performing certain maintenance tasks. Farkas, the father of Lorraine Suissa and a one-third owner of Petitioner, is not a licensed nursing home administrator in the State of Florida. No documentation was presented by Petitioner to reflect exactly what was done by Farkas, when it was done, and what the services would have cost if performed by someone other than an owner. For the 1979 fiscal year, Respondent disallowed $2,395 in automobile and travel expenses incurred by the Petitioner, since the costs were not properly documented and some of the expense was applicable to the owner's personal use. Although the automobile was owned by Petitioner and used for purchasing items for the facility and patients, Mr. Suissa drove the automobile to and from work. In 1980, the amount of $2,106 was disallowed as that portion of automobile expense applicable to the owner's personal use. Although Petitioner maintained no records proportioning the use of the automobile between personal and business, the percentage of expense disallowed was accepted by Respondent based upon Petitioner's statements. For the fiscal year ending in 1979, Respondent disallowed $787 of Petitioner's insurance expense applicable to the owner's personal use of the Petitioner's automobile. During the fiscal year ending in 1980, Respondent disallowed the amount of $1,222 as auto insurance applicable to the owner's personal use. Respondent disallowed the amount of $1,419 as utilization review expenses during the fiscal year ending July 31, 1979. For the fiscal year ending in 1979, Petitioner claimed as combined workmen's compensation insurance and hospitalization group insurance the amount of $17,476.69. Of this amount, Respondent disallowed the sum of $4,286. For the fiscal year ending in 1979, Respondent disallowed the amount of $1,828 as that portion of the depreciation on Petitioner's automobile which was applicable to the owner's personal use after determining that 60 percent of the automobile's use that year was personal. For the fiscal year ending in July, 1980, Respondent disallowed the amount of $1,586 as that portion of depreciation on the automobile applicable to the owner's personal use after determining that 50 percent of the automobile's use was personal. For 1979, Respondent disallowed $20,613 in interest expense, that amount representing the interest on the loan obtained by the Suissas in order to purchase Petitioner's stock. For the fiscal year ending July, 1980, the amount of $19,455 was disallowed by Respondent as interest on the loan used to purchase the corporate stock from Petitioner's former owners. In Petitioner's 1979 cost report, Petitioner claimed the amount of $853 representing the cost of food purchased from a delicatessen, and in its 1980 cost report, Petitioner claimed the amount of $1,021 representing food purchased from a delicatessen. Although Petitioner's policy has been to provide food for employees during the time that they are working, the special food purchase from the delicatessen was made because Mr. and Mrs. Suissa are Orthodox Jews and Petitioner did not at that time have a kosher kitchen facility. For 1979, Respondent disallowed Petitioner's Medicare adjustment in the amount of $70,721 to remove expenses allocated to the Medicare program. Medicare actually reimbursed Petitioner only the amount of $58,127. For the fiscal year ending July 31, 1980, Respondent disallowed the amount of $59,994 as a Medicare adjustment for expenses to be paid pursuant to the Medicare program. Medicare actually paid Petitioner the amount of $50,451 in Medicare benefits for that fiscal year. In the fiscal year ending July 31, 1980, Respondent disallowed the amount of $230 for flowers given to employees by Petitioner as an expense not related to patient care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Petitioner entitled to reimbursement in the amount of $15,074.36 by Respondent for allowable costs which it accrued during the fiscal year ending July 31, 1979; finding Petitioner entitled to be reimbursed in the amount of $9,543 by Respondent for allowable costs which it accrued during the fiscal year ending July 31, 1980; and approving all other adjustments made by Respondent to Petitioner's cost reports for those two fiscal years. DONE and RECOMMENDED this 27th day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1983. COPIES FURNISHED: Edward S. Jaffry, Esquire William L. Grossenbacher, Esquire 800 Barnett Bank Building Post Office Drawer 1140 Tallahassee, Florida 32302 Joseph L. Shields, Esquire Department of HRS 1317 Winewood Boulevard Building 3, Room 218 Tallahassee, Florida 32301 David H. Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue The issue is what is the correct amount of workers’ compensation reimbursement to Largo Medical Center for emergency services rendered to patient M.C. for a work-related injury?
Findings Of Fact Petitioner, Guarantee, is a carrier within the meaning of Subsections 440.02(4) and (38), Florida Statutes, and Florida Administrative Code Rule 69L-7.602(1)(w). Respondent, the Department, has exclusive jurisdiction to decide disputes relating to the reimbursement of health care providers by carriers for medical services rendered to injured workers. § 440.13(7) and (11)(c), Fla. Stat. Intervenor, Largo, is a health care provider within the meaning of Subsection 440.13(1)(h), Florida Statutes. Largo is an acute care hospital located in Largo, Pinellas County, Florida. On July 25, 2009, Largo provided emergency services to patient M.C., a 32-year-old female, who was injured at her place of work. M.C. was examined by Largo’s emergency department physician. She received two Computed Tomography (“CT”) scans without contrast dye, one of the brain and one of the cervical spine. She also received a pregnancy test and an X-ray of her lumbar spine. The results of these diagnostic tests were negative. M.C. was given a cervical collar to wear, and was discharged. Largo’s total charges for M.C.’s outpatient emergency services were $7,885.05. Largo submitted its claim for reimbursement using the standard “uniform billing” form, UB-04. The UB-04 sets out each service provided to M.C., the individual charge for each service, and the total charge. The individual services on the UB-04 submitted for patient M.C. are listed as follows: urine pregnancy test; X-ray; CT scan of the cervical spine; a three-dimensional rendering of the image and its interpretation; the CT of the brain; and the emergency department visit itself. Largo’s claim was received by MCMC, an organization described as a “third-party administrator,” and was referred in turn to Qmedtrix. Qmedtrix is a medical bill-review agent located in Portland, Oregon. Qmedtrix performs bill review by referral from carriers and third-party administrators, and performed a bill review for Guarantee of the bill submitted by Largo. For its compensation, Qmedtrix is paid a percentage of the difference, if any, between the amount billed by the facility and the amount paid by the carrier. Following Qmedtrix’ review, Largo received a check from Guarantee in the amount of $5,287.97, along with an “Explanation of Medical Benefits” review (EOBR), which is required to be sent along with the bill payment. For reasons that are not clear, there are two EOBRs in evidence for this claim. One (Petitioner’s Exhibit 4) has the logo “MCMC” in the upper left hand corner and is substantially more formal. The other (Largo’s Exhibit 3) does not have any identifying logo, but the following statement appears on page two: “For questions regarding this review, please call MCMC at 1-888-350-1150.” It is not clear why MCMC would have generated two different EOBRs for the same claim, but, in any event, the allowed amounts for the six components of Largo’s charges and the total payment amount, $5,287.97, is the same on both EOBRs. The EOBR that is Largo’s Exhibit 3 sets out the six individual components of Largo’s claim, and indicates that the first five were approved for reimbursement at 75 percent of the charge billed by Largo. The sixth component is the charge for the emergency department visit itself. For that charge, Largo billed $1,365.38, of which 75 per cent would be $1,024.04. The EOBR indicates the corresponding 25 percent discount from billed charges ($341.35) under a column entitled “MRA,” and indicates further that an additional reduction of $625.81 was applied, leaving an approved payment of $398.22 for the emergency room component of the claim. The additional reduction of $625.81 is under a column entitled “Ntwk Redc,” and the narrative explanation under the total payment states, ”The network discount shown above is based on your contract with the network.” Guarantee conceded at hearing that there was no contract applicable to the claim. The EOBR also has references to “convalescent care” and “PIP days,” neither of which apply to Largo’s claim. The EOBR that is Guarantee’s Exhibit 4 has one column entitled “Qualify Code.” In completing an EOBR, insurers must select a code from a list of approximately 50 codes found in Florida Administrative Code Rule 69L-7.602(5)(o)2., which identifies the reason for the disallowance or adjustment. For the emergency room visit, the EOBR shows a code of 82, which is explained as follows: “Payment adjusted: Payment modified pursuant to carrier charge analysis.” Both EOBRs indicate a “procedure code” of 99283. The UB-04 submitted by Largo used code 99284. These codes are among five codes that are used by hospitals to bill emergency department visits based on “level” of intensity rendered. These codes are taken from the American Medical Association’s Current Procedural Terminology (or CPT), a coding system developed for physician billing, not for hospitals. Over the years, these CPT codes have been adopted by hospitals for billing emergency department visits. Emergency department services are billed with CPT codes 99281 through 99285. After receiving the payment and EOBR, Largo timely filed a Petition for Resolution of Reimbursement Dispute, with attachments, to the Department. Largo alleged in its Petition that the correct reimbursement amount owed was $5,913.79, leaving an underpayment of $625.82. Qmedtrix, acting as Guarantee’s representative, then filed Guarantee’s Response to Petition for Resolution of Reimbursement Dispute and attachments with the Department. Attached to the Response was a letter from R.W. von Sydow dated November 5, 2009. The letter asserted that the correct payment to the hospital (Largo) should be determined on an average of usual and customary charges for all providers in a given geographic area, rather than the hospital’s usual and customary charges. As authority, Mr. von Sydow cites the case of One Beacon Insurance v. Agency for Health Care Administration, 958 So. 2d 1127 (Fla. 1st DCA 2007). The letter also requested that the Department “scrutinize the bill in question in order to determine, first, whether the hospital in fact charged its usual charge for the services provided and, second, whether the billed charges are in line with the customary charges of other facilities in the community.” The letter further alleges that the hospital “upcoded” the emergency room visit, billing using CPT code 99284, asserting that the proper billing code should have been 99283. The letter concludes that the amount paid, $398.22, for the emergency department visit is closer to the “usual and customary” charges that Qmedtrix asserts, on behalf of Guarantee, is applicable to the claim. On November 13, 2009, the Department issued its Determination. The Determination states in pertinent part: The Carrier Response to Petition for Resolution of Reimbursement Dispute disputes the reasonableness of the hospital’s “usual and customary charges,” maintains the petitioners’ charges should be based on the average fee of other hospitals in the same geographic area, and references a manual not incorporated by rule. There are no rules or regulations within Florida’s Workers’ Compensation program prohibiting a provider from separately billing for individual revenue codes. The carrier did not dispute that the charges listed on the Form DFS-F5- DWC-90 (UB-92) or the charges listed on the itemized statement did not conform to the hospital’s Charge Master. Nor did the carrier submit the hospital’s Charge Master in the response or assert that the carrier performed an audit of the Charge Master to verify the accuracy of the billed charges. Therefore, since no evidence was presented to dispute the accuracy of the Form DFS-F5- DWC-90 or the itemized statement as not being representative of the Charge Master, the OMS finds that the charges billed by the hospital are the hospital’s usual and customary charges. Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The EOBR submitted with the petition does not conform to the EOBR code requirements of Rule 69L-7.602(5)(q), F.A.C. Only through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill. Pursuant to s. 440.13(12), F.S., a three member panel was established to determine statewide reimbursement allowances for treatment and care of injured workers. Rule 69L-7.501, F.A.C., incorporates, by reference, the applicable reimbursement schedule created by the panel. Section 440.13(7)(c), F.S., requires the OMS to utilize this schedule in rendering its determination for this reimbursement dispute. No established authority exists to permit alternative schedules or methodologies to be utilized for hospital reimbursement other than those adopted by Rule 69L-7.501, F.A.C., unless the provider and the carrier have entered into a mutually agreeable contract. Rule 69L-7.501, F.A.C., incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Since the carrier failed to indicate any of the services are not medically necessary, the OMS determined proper reimbursement applying the above referenced reimbursement guidelines. Therefore, the OMS has determined that the carrier improperly adjusted reimbursement to Largo Medical Center for services rendered to the above- referenced injured employee on July 25, 2009. Based upon the above analysis, the OMS has determined that correct reimbursement equals $5,913.79 ($7,885.05 x 75% [Hospital Manual] = $5,913.79). The determination letter also informed Guarantee of its right to an administrative hearing. Guarantee timely filed a Request for Administrative Hearing, which gave rise to this proceeding. CODING FOR M.C.’S EMERGENCY SERVICES As mentioned above, Largo reported the emergency department visit using CPT Code 99284. No one from the hospital testified, but Largo’s expert, Allan W. March, M.D., reviewed Largo’s hospital record for M.C. Dr. March is a graduate of Dartmouth College and Johns Hopkins University Medical School. He has extensive experience in, among other things, hospital physician practice and utilization review. Dr. March describes utilization as the oversight of medical care to affirm that it is appropriate, cost-effective, and medically necessary. Dr. March has worked as an emergency department physician and has personally treated upwards of 5,000 workers’ compensation patients. Dr. March testified on behalf of Largo and the Department. Dr. March described M.C. and her injuries from the hospital record as follows: This is a 32-year-old female who had just slipped at her place of work prior to arrival at the emergency department and presented in moderate distress, with moderate pain in the head, neck, and lower back. And the patient displayed tenderness in the posterior neck area as well as in the right lower back. Dr. March reviewed Largo’s hospital record for M.C. to analyze whether Largo appropriately used CPT code 99284, or whether it should have used a lower CPT code. Largo’s coding for the emergency department visit is based on the American College of Emergency Physicians’ “ED Facility Level Coding Guidelines” (ACEP Guidelines). By using the ACEP Guidelines, Largo used a nationally recognized methodology in determining the level of service to which the hospital should bill. He noted that the hospital’s charge sheet indicated that the level of services was marked at a Level 4. Dr. March compared the hospital’s charge list with the ACEP Guidelines and found them to be essentially the same, and that the Level 4 marked on the charge sheet corresponded with CPT code 99284. Dr. March found that Largo used a nationally recognized methodology in determining the level of service to which the hospital should bill. In Dr. March’s opinion, Largo correctly assigned 99284 to M.C.’s emergency department visit, and that the assignment of 99284 is substantiated by the medical record. Under the ACEP guidelines, the CPT code level assigned is always the highest level at which a minimum of one “possible intervention” is found. In this case, Dr. March determined that two CT scans were ordered by the physician and performed by the hospital, which substantiates the use of a 99284 code under the ACEP Guidelines. Dr. March further explained that the coding level of a hospital does not correspond directly to the coding level assigned by the physician. The physician’s services are coded under the CPT-4 coding book. According to Dr. March, the CPT coding manual is applicable to facility coding only if the hospital chooses to use this manual as a basis in their methodology for coding. Further, Dr. March explained that the separate billing of the emergency department visit captures separate and distinct costs incurred by hospitals that are not included in line-items for procedures. The claim submitted by Largo was sent to Qmedtrix for a bill review. Its data elements were first entered into Qmedtrix’ proprietary bill-review software known as “BillChek.” The software placed Largo’s claim on hold for manual review. The claim was then manually reviewed by Mr. von Sydow, Director of National Dispute Resolution for Qmedtrix. Although his educational background is in law, Mr. von Sydow is a certified coder certified by the American Health Information Management Association (AHIMA). Mr. von Sydow determined in his bill review that Largo should have used code 99283 instead of 99284. Mr. von Sydow described what he considers to be inconsistencies between certain diagnosis codes under the International Classification of Diseases, Ninth Edition (ICD-9) and the CPT codes used to classify the emergency department visit. He considers the ICD-9 codes on Largo’s claim (specifically 959.01 used to indicate “head injury, unspecified”) to be inconsistent with CPT code 99284. In his view, ICD-9 corresponds more closely with CPT code 99283. Moreover, Mr. von Sydow referenced a study by the American Hospital Association (AHA) and AHIMA, which suggests that hospitals should count the number and kind of interventions to approximate the CPT factors, but that a hospital should not include in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. He further acknowledged that the federal Centers for Medicare and Medicaid Services (CMS) allow hospitals to use their own methodology in applying the CPT codes. David Perlman, M.D., received his undergraduate degree from Brown University and his medical degree from the University of Oregon. He has considerable experience as an emergency room physician. For the past six years, he has worked for Qmedtrix initially doing utilization review and as its Medical Director since 2005. Dr. Perlman testified on behalf of Guarantee. Dr. Perlman is familiar with the ACEP guidelines relied upon by Dr. March and the AHA/AHIMA study relied upon by Mr. von Sydow. He is also familiar with the CPT code handbook. Dr. Perlman suggested that the use of the ACEP guidelines could result in reimbursement essentially already provided in a separate line-item. He agrees with the methodology recommended by the AMA/AHIMA study. That is, counting the number and kind of interventions or procedures to approximate the CPT book’s factors to consider in selecting the code billed for emergency department services, but not including in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. In Dr. Perlman’s opinion, M.C.’s injuries supported assignment of CPT code 99283 rather than 99284. The fact that M.C. underwent CT scans did not alter this conclusion. According to Dr. Perlman, use of a CT scan in a patient’s emergency department treatment determines that the facility may assign a 99284 code under the ACEP guidelines. In his opinion, this does not necessarily reflect the severity of the illness or injury. Dr. Perlman acknowledged, however, that hospitals are free to use the ACEP guidelines and that many hospitals do so. The preponderance of the evidence establishes that there is no national, standardized methodology for the manner in which hospitals are to apply CPT codes 99281-99285 for facility billing. The preponderance of the evidence also establishes that, while there is a difference of opinion as to whether ACEP guidelines are the best method, it is a nationally recognized method used by many hospitals. Largo’s use of this methodology is supported by the weight of the evidence as appropriate. M.C.’s hospital record amply documents the interventions required for the assignment of CPT code 99284 under the ACEP guidelines. Dr. March’s opinion that the separate billing of the emergency department visit captures separate and distinct costs incurred by hospitals that are not included in line-items for procedures is accepted. It is concluded that the coding of M.C.’s emergency department visit as 99284 by Largo was appropriate. There is no dispute that Largo’s charges as represented on the UB-04 form conform to its internal charge master, or that the services represented were in fact provided, or that they were medically necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers' Compensation, enter a Final Order requiring Petitioner to remit payment to Largo consistent with the Determination Letter dated November 13, 2009, and Section 440.13(7)(c), Florida Statutes. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue The issue in this case is whether the Petitioner should be required to pay $300 as workers' compensation reimbursement for medical services provided to a patient.
Findings Of Fact Raulerson is an acute care hospital in Okeechobee, Florida, owned by Okeechobee Hospital, Inc. Raulerson's licensed premises includes the acute care hospital building and an additional building that contains a physical therapy department and an outpatient clinic identified as "Company Care." Company Care provides occupational health and workers' compensation services to employees working for participating employers. The clinic operates as a department of the hospital and is staffed by salaried employees of the hospital. The ambulatory care services provided at the clinic are hospital services pursuant to Florida Administrative Code Rules 59A- 3.065(4) and 59A-3.2085(7). The Patient suffered a compensable injury on August 4, 2011, and was treated on that date at the Raulerson emergency room. On August 8 and 15, 2011, the Patient went to the Raulerson outpatient clinic for evaluation and to have a non-surgical wound dressing changed or removed. Using a standard hospital billing form known as a UB-04, Raulerson submitted a single $400 bill to the Petitioner. The bill contained a separate $200 charge for each of the two outpatient service dates. The Florida workers' compensation program refers to the UB-04 form as a DFS-F5-DWC-90 form. Although the Petitioner attempted to assert at the hearing that the outpatient services had not been fully authorized, the stipulation filed by the parties prior to the hearing clearly stated that the services were authorized by the Petitioner and that there are no issues of medical necessity presented in this case. The Petitioner declined to pay the bill for the outpatient visits and issued an Explanation of Benefits Review (EOBR) form that provided the following coded explanation for its decision: 64-PAYMENT DISALLOWED: BILLING ERROR: SERVICE "NOT COVERED" UNDER APPLICABLE WORKERS' COMPENSATION REIMBURSEMENT MANUAL. * * * 5218-FACILITY CHARGE FOR TREATMENT ROOM OR CLINIC VISIT HAS BEEN IMPROPERLY BILLED PURSUANT TO NATIONAL UNIFORM BILLING MANUAL GUIDELINES. PROFESSIONAL SERVICES RENDERED FOR FACILITY BASED PHYSICIAN ARE TO BE BILLED ON APPROPRIATE FORM. NO ADDITIONAL REIMBURSEMENT GRANTED FOR FACILITY FEE. The standard billing form used by health care professionals to file for reimbursement of medical claims is a CMS-1500 form (identified as the DFS-F5-DWC-9 form by the Florida workers' compensation program). Essentially, the Petitioner has asserted that Raulerson should have submitted bills for the outpatient services on a professional services billing form rather than on a hospital billing form. The apparent effect of submitting the charges on the hospital billing form rather than the professional services billing form was to increase the reimbursement rate paid for the services. There was no credible evidence that Raulerson's use of the hospital billing form violated any applicable requirements of the Florida workers' compensation program. The Petitioner has previously paid similar claims that were submitted on the UB-04 hospital billing form. Florida Administrative Code Rule 69L-7.501 incorporates by reference, the Florida Workers' Compensation Manual for Hospitals (2006 Edition), which, states, in relevant part, as follows: Section X: Outpatient Reimbursement Reimbursement Amount Except as otherwise provided in this Section, hospital charges for services and supplies provided on an outpatient basis shall be reimbursed at seventy-five percent (75%) of usual and customary charges for medically necessary services and supplies, and shall be subject to verification and adjustment in accordance with Sections XI and XII of this manual. * * * Section XI: Disallowed, Denied and Disputed Charges * * * Physician Services The insurer shall not reimburse a hospital for physician services when billed by the hospital on the hospital billing form. Proper billing and reimbursement of physician services rendered in any location, including inside a hospital, shall be in accordance with the requirements of rules 69L-7.602 and 69L-7.020. Rule 69L-7.602 is the Florida Workers' Compensation Medical Services Billing, Filing and Reporting Rule. Rule 69L-7.602(4)(c) requires that hospitals submit bills using Form DFS-F5-DWC-90 (the hospital billing form). Rule 69L-7.602(4)(b)4.b. states as follows: Outpatient billing--Hospitals shall in addition to filing a Form DFS-F5-DWC-90: Enter the CPT®, HCPCS or workers' compensation unique code and the applicable CPT® or HCPCS modifier code in Form Locator 44 on the Form DFS-F5-DWC-90, when required pursuant to the UB-04 Manual; and Make written entry "scheduled" or "non-scheduled" in Form Locator 80 of Form revision 2006--'Remarks' on the DFS-F5-DWC- 90, when billing outpatient surgery or outpatient surgical services; and Attach an itemized statement with charges based on the facility's Charge Master; and Submit all applicable documentation required pursuant to Rule 69L-7.501, F.A.C.; Bill professional services provided by a physician or recognized practitioner on the Form DFS-F5-DWC-9, regardless of employment arrangement. (emphasis supplied). Rule 69L-7.602(1)(nn) sets forth the following relevant definition: "Recognized Practitioner" means a non- physician health care provider licensed by the Department of Health who works under the protocol of a physician or who, upon referral from a physician, can render direct billable services that are within the scope of their license, independent of the supervision of a physician. The services in this case were provided by an advanced registered nurse practitioner (ARNP), a recognized practitioner as defined by the rule. The coding on the bill submitted to the Petitioner by Raulerson indicated that the services were provided in a clinical setting (Revenue Code 510) by a recognized practitioner (CPT Code 99211). Review of the bill by the Department indicated that the charge for services attributed to "Revenue Code 510" was a "facility fee" rather than a professional services fee. Raulerson did not submit a bill for the professional services provided to the patient on August 8 and 15, 2011, by the ARNP. No specific charges for physician services were included on the bill at issue in this proceeding. Whether rendered on an inpatient or outpatient basis, the provision of hospital-based services routinely entails the services of medical professionals. The evidence failed to establish that Raulerson was legally required to submit a bill for professional services or that the bill at issue in this case should have been submitted on a professional services billing form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order affirming the Reimbursement Dispute Determination dated January 20, 2012, wherein the Department directed FFVA Mutual Insurance Company to pay a $300 reimbursement claim filed by Raulerson Hospital. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Julie Lewis Hauf, Esquire Law Office of Julie Lewis Hauf, P.L. 15880 Summerlin Road, Suite 300 PMB 315 Fort Myers, Florida 33908 Mari H. McCully, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Richard M. Ellis, Esquire Rutledge, Ecenia and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32301
