Findings Of Fact The Amended Petition named Dr. Tracey Molrine as the physician providing obstetric services at Eileen’s birth on August 30, 2014. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Tracey Molrine [sic] indicates that in the year 2014, the year in which Dr. Molrine [sic] participated in the delivery of Eileen Mares, as indicated in the Petitioners’ Petition for Benefits, Dr. Morline [sic] did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Molrine [sic] in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2013 [sic], Dr. Molrine [sic] paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non-participating, non-exempt licensed physicians. The physician payment history/report for Dr. Tracey supports Mr. Daughtry’s affidavit. Petitioners acknowledge in their Motion in Partial Support of Respondent’s Motion for Final Summary Order that the requirement of section 766.309(1)(b), that obstetric services be provided by a participating physician, has not been satisfied. At the time of the birth of Eileen, Dr. Tracey was not a participating physician in the Plan.
The Issue Whether Cameron Johnson (Cameron), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement of a civil suit for medical malpractice associated with Cameron's birth against the treating obstetricians, the obstetrical clinic, and the hospital, bars Petitioners from receiving an award of Plan benefits.
Findings Of Fact Findings related to compensability Mary N. Johnson and Jerome Johnson are the natural parents of Cameron Johnson, a minor. Cameron was born a live infant on November 24, 2001, at Lakeland Regional Medical Center, a "hospital" as defined by Section 766.302(6), Florida Statutes, located in Lakeland, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during Cameron's birth by Jeffrey M. Barrett, M.D., and James B. Mammel, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. At the time, Doctors Barrett and Mammel were employees of Watson Clinic, LLP. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Cameron suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered him permanently and substantially mentally and physically impaired. Consequently, the proof demonstrates that Cameron suffered a "birth-related neurological injury," and since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. The civil suit On October 20, 2004, Mary N. Johnson and Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, filed a complaint sounding in medical malpractice against Jeffrey M. Barrett, M.D., James B. Mammel, M.D., Watson Clinic, LLP, Unknown Nurses, c/o Lakeland Regional Medical Center, and Lakeland Regional Medical Center for acts or omissions during Mrs. Johnson's labor and delivery, which resulted in Cameron's brain injury and profound neurologic impairment, in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Case No. 2004CA-853 Section 11. (Exhibit B). The settlement with Lakeland Regional Medical Center A settlement was reached in the civil suit with Lakeland Regional Medical Center for an undisclosed amount in excess of $25,000. (Stipulation of Facts, para. 15). That settlement was approved by court order of November 10, 2005. (Stipulation of Facts, para. 14; Exhibit E). The General Release and Settlement Agreement executed by Petitioners' in favor of Lakeland Regional Medical Center on November 21, 2005, provided in pertinent part: For and in consideration of [amount redacted] the Releasing Parties [Petitioners] . . . release, acquit and forever discharge the Released Party [Lakeland Regional Medical Center] . . . from any and all claims, actions, causes of action, demands, obligations, liens, rights, damages, costs, loss of service, expense and/or compensation, of any nature whatsoever which the Releasing Party now has or which may hereafter accrue to the Releasing Party on account of, or in any way growing out of, any and all known or unknown, foreseen and unforeseen, injuries and/or damages and the consequences thereof, including wrongful death, resulting from the incident which occurred during Mary Johnson's admission of November 23, 2001 at Lakeland Regional Medical Center, and which has resulted in a claim and/or lawsuit for physical injuries and damages and being brought by the Releasing Parties against the Released Party, as more fully described in the Complaint styled Mary N. Johnson and Jeromie Johnson, individually and as Parent and Next Friends of Cameron Johnson, a minor child v. Jeffrey M. Barrett, M.D., James B. Mammell, M.D., Watson Clinic LLP, Unknown Nurses c/o Lakeland Regional Medical Center, Inc., a Florida Corporation and Lakeland Regional Medical Center, Inc., a Florida Corporation, filed in the Court of the Tenth Judicial Circuit, in and for Polk County, Florida being Case Number 2004CA-853. Furthermore, notwithstanding any of the foregoing provisions of this Release, it is expressly understood and agreed that nothing herein shall be construed to release, remise, or discharge anyone other than the specific parties named in this Release for this specific incident described. No other medical malpractice claim or NICA claim, which may stem or flow from the injuries suffered in the incident described herein is released. This Release is limited to the parties disclosed herein and the parties expressly deny that this Release is intended to release any other parties beyond the scope of this incident or document. It is the specific intent of the parties not to release Jeffrey M. Barrett, M.D., James B. Mammell, M.D., or Watson Clinic, LLP. Nothing contained herein is intended by the parties to his General Release and Settlement Agreement to be an election of remedies or release of any NICA claim or medical malpractice claim that the Releasing Parties may have as a result of the incidents surrounding the birth of the minor child, Cameron Johnson, other than a release of the NICA claim Cameron Johnson may have against the Released Parties. Specifically, the parties hereto acknowledge that the NICA claim, if any, of Cameron Johnson against Drs. Mammell, Barrett and the Watson Clinic LLP shall survive the execution of this General Release and Settlement Agreement. (Exhibit F). Thereafter, given the consummation of the settlement agreement, and on the parties' joint stipulation, the court dismissed the case against Lakeland Regional Medical Center with prejudice, by order of January 18, 2006. (Exhibit L). However, the case remained pending against Doctors Barrett and Mammel, and Watson Clinic, LLP. The claim for NICA benefits and settlement with Dr. Barrett and Watson Clinic, LLP After an order abating the civil suit against the remaining defendants was issued, Petitioners filed the subject Petition for Benefits on November 13, 2006, to resolve whether the claim was compensable and, if so, for an award. The petition included the statement that in Petitioners' view "NICA does not apply, but [they] have been Court ordered to apply for NICA pending Trial." However, Petitioners' recovery in the civil action against Lakeland Regional Medical Center was not disclosed. (Stipulation of Facts, para. 18, 19, and 20; Exhibit G). By letter dated February 26, 2007, NICA advised the parties that it agreed Cameron suffered a birth-related neurological injury, and that it was prepared to provide benefits as specified in Section 766.31, Florida Statutes. (Exhibit H). However, Petitioners persisted in their view that the claim was not compensable, and also advanced the view that the participating physicians failed to comply with the notice provisions of the Plan. Consequently, a hearing was scheduled for July 25 and 26, 2007, to address the issues of compensability and notice, and NICA's proposal to accept the claim for compensation was never presented to the administrative law judge for approval. § 766.305(7), Fla. Stat. ("Any claim which the association determines to be compensable may be accepted for compensation provided that the acceptance is approved by the administrative law judge to whom the claim for compensation is assigned."). The parties' Stipulation of Facts describes the events that ensued shortly before hearing, as follows: On July 13, 2007, the office of counsel for Intervenors advised the office of counsel for Respondent that they had settled with Petitioners. On July 13, 2007, the office of counsel for Intervenors advised the office of counsel for Respondent that only the civil action had been resolved, but the NICA claim was still proceeding. By letter dated July 13, 2007, both counsel for Intervenors and Petitioner's counsel advised the Court [ALJ] and counsel for NICA that neither the civil action nor the NICA action had been resolved. A copy of Petitioners' and Intervenors' counsels' letters dated July 13, 2007 are [marked] as Exhibit "J". * * * On July 23, 2007, Petitioners placed a proceeding on the Circuit Court calendar to approve a proposed settlement of the civil court matter against the remaining defendants. A copy of the Circuit Court docket is [marked] as Exhibit "L". By letter dated July 24, 2007, counsel for Petitioners advised the court [ALJ] and all parties that they had withdrawn their objection to NICA's applicability. A copy of this letter is [marked] as Exhibit "M". * * * 38. By letter [dated] July 24, 2007, counsel for Respondent advised the Court [ALJ] and all parties that consistent with Petitioners' Counsel's letter dated July 24, 2007, NICA had accepted the claim as compensable and was prepared to provide benefits consistent with Ms. Shipley's February 2007 letter. This letter also advised the court [ALJ] that the stipulation would be held pending the resolution of Petitioners' Counsel's fee and costs for inclusion in the stipulation. A copy of the letter is [marked] as Exhibit "N". Under the circumstances, the hearing scheduled for July 25 and 26, 2007, was cancelled. While the stipulation was held pending resolution of issues related to attorney's fees and costs, Petitioners, without notice to Respondent, resolved the civil action for an undisclosed sum against Doctors Barrett and Mammel, and the Watson Clinic, LLP. The parties' Stipulation of Facts describes those events, as follows: On July 25, 2007, Petitioner filed a Notice of Voluntary Dismissal with prejudice in the Circuit Court proceeding against James B. Mammel, M.D. A copy of the Notice of Voluntary Dismissal is [marked] as Exhibit "O". By order dated July 25, 2007, the Circuit Court approved the settlement of the action against the remaining defendants [Dr. Barrett and Watson Clinic, LLP]. A copy of the Order approving the settlement is [marked] as Exhibit "P". * * * 42. On July 26, 2007, Petitioners executed General Releases and Settlement Agreements in favor of the remaining defendants in the Circuit Court proceeding. A copy of the General Release and Settlement Agreement is [marked] as Exhibit "R". (Settlement amount is redacted). The Release executed by Petitioners on July 26, 2007, provided in part: FOR THE CONSIDERATION of [amount redacted] . . . and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned [Petitioners] . . . do hereby release and forever discharge: JEFFREY M. BARRETT, M.D., WATSON CLINIC LLP and TIG INSURANCE COMPANY, jointly and severally, . . . from any and all claims, demands, damages, costs, loss of services, expenses, expense and compensation, actions, causes of action, or suits of whatsoever kind or nature, whether arising at law or in equity, which the undersigned may have had, may now have, or may hereafter have against the said Releasees because of matters, causes, happenings or things occurring prior to the date of this Release, including any and all damages of any kind, known or unknown, or to result hereafter from including but not limited to, any and all treatment or care of MARY N. JOHNSON by JEFFREY M. BARRETT, M.D. and WATSON CLINIC LLP, and all of their agents, employees, shareholders, partners and associates thereof; and including but not limited to those matters that are the subject of the following described lawsuit: Mary N. Johnson and Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, Plaintiffs, vs. Jeffrey M. Barrett, M.D., James B. Mammel, M.D., Watson Clinic LLP, Unknown Nurses c/o Lakeland Regional Medical Center, Inc., a Florida corporation, and Lakeland Regional Medical Center, Inc., a Florida corporation, Defendants, Case No. 2004-CA-853, filed in Circuit Court in and for Polk County, Florida . . . . * * * Nothing herein shall be construed as to operate as a waiver or release or abandonment of any claims or rights the undersigned may have as to NICA benefits for the undersigned. More specifically, the parties agree that Mary Johnson and Jeromie Johnson, on behalf of their minor child, Cameron Johnson, and on their individual behalf, have been granted the benefits of NICA pursuant to Florida Law. A copy of the letter providing such benefits is attached hereto and incorporated herein by reference. Despite acceptance by NICA, Mary Johnson and Jeromie Johnson, individually and as parents of Cameron Johnson, have contended that such benefits from NICA are not applicable to the claim raised. Releasees have contended that NICA benefits are the sole source of compensation available to Releasors. Both Releasors and Releasees acknowledge and agree that the issue of whether or not NICA benefits are the sole remedy of Releasors in this case is disputed between them. Further, both Releasors and Releasees agree that, regardless of whether the NICA benefits provide an exclusive remedy or not for the claims at issue between them, Releasees are voluntarily providing to the Releasors the monetary considerations set forth above. Releasees agree that they shall never contend that acceptance of Releasors by NICA or payment of NICA benefits to Releasors preclude payment of the sums mentioned above and Releasees agree that such monetary considerations shall be paid to Releasors in addition to any NICA benefits provided to Releasors. Releasees understand that they have the right to contend that, if NICA applies, no monies could be owed to the Releasors above and beyond NICA benefits. Because of reasons personal to Releasees, however, Releasees are knowingly and with the advice of independent counsel available to them, forever waiving the right to make any such contentions. Releasees are providing the monetary sums set forth above, despite denying the merits of Releasors' claims, in addition to NICA benefits freely, voluntarily and knowlingly. (Exhibit R). The parties' Stipulation of Facts chronicles subsequent events, as follows: On July 31, 2007, counsel for NICA sent to counsel for Petitioners and Intervenors via email a proposed Joint Stipulation stipulating to the compensability of the Petition for benefits. The Joint Stipulation contained affirmative representations by Petitioners, including that they had not received a recovery under a settlement or final judgment in a civil action against any person or entity directly involved with the labor, delivery or immediate post delivery resuscitation with respect to the "injury" sustained by Cameron Johnson. (A copy of the Stipulation is [marked] as Exhibit "S"). On August 1, 2007, counsel for Petitioners and Intervenors advised counsel for Respondent that the Petitioners settled the medical malpractice action against Drs. Mammel and Barrett and the Watson Clinic. On August 1, 2007, counsel for Petitioners and Intervenors did not advise counsel for Respondent that Petitioners had settled the medical malpractice action against Lakeland Regional Medical Center. By letter dated August 2, 2007, counsel for Respondent advised counsel for Petitioners and Intervenors that pursuant to Section 766.304, Florida Statutes, the tort recovery precluded an award of benefits and advised NICA was unable to pay benefits in this case. A copy of the letter is [marked] as Exhibit "T". Notably, prior to August 1, 2007, NICA was not shown to have had any knowledge of any settlements in the civil action, or to have been a party or participant in that proceeding.
Findings Of Fact The Amended Petition named Dr. Decker as the physician providing obstetric services at Leticia’s birth on May 11, 2008. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Lawrence Decker, indicates that in the year 2008, the year in which Dr. Lawrence Decker participated in the delivery of Leticia Peasah, as indicated in the Petitioner’s Petition for Benefits, Dr. Lawrence Decker did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Lawrence Decker in relation to an exempt status for the year 2008. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2008, Dr. Lawrence Decker paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non-participating, non-exempt licensed physicians. The physician payment history/report for Dr. Decker supports Mr. Daughtry’s affidavit. Neither Petitioners nor Intervenor have offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Decker had not paid his $5,000 assessment for 2008. At the time of the birth of Leticia, Dr. Decker was not a participating physician in the Plan. The Petition was filed on July 9, 2015, and the Amended Petition was filed on July 10, 2015, which is more than five years after Letitia’s birth.
The Issue The issue in these consolidated cases is whether two Petitions for Resolution of Reimbursement Dispute are entitled to be considered on the merits, or whether, instead, they should be dismissed.
Findings Of Fact The Department is the state agency with exclusive jurisdiction to resolve reimbursement disputes between health care providers and carriers under section 440.13(7), Florida Statutes (2019),2/ part of the Workers' Compensation Law. Dr. Aponte is a physician. As such, he is a health care provider, as defined in section 440.13(1)(g). Dr. Aponte operates a business called Body Contouring, Inc., at which he provides medical services to patients, including injured workers. Sedgwick Claims Management Services, Indemnity Insurance Company of North America, The Hartford Medical Bill Processing Center, and Twin City Fire Insurance Company are carriers, as defined in section 440.13(1)(c). At issue in both cases are bills submitted by Dr. Aponte to one of the referenced carriers for services provided to injured workers, which were paid, in part, and adjusted by the carrier. In each case, Dr. Aponte was notified of the adjustments to each bill by means of an Explanation of Bill Review (EOBR) from the carrier explaining why his bill was not fully paid. If a health care provider such as Dr. Aponte is dissatisfied with a carrier's adjustment or disallowance of charges on a bill for services to an injured worker, the provider's recourse is to serve a Petition for Resolution of Reimbursement Dispute on the Department within 45 days after the provider receives the EOBR. In both consolidated cases, Dr. Aponte seeks to contest certain carrier adjustments to bills submitted for services he rendered to injured workers. The specific adjustments he seeks to contest are reductions to his charges that were explained in EOBRs as being made pursuant to a contractual arrangement. Each EOBR making this adjustment identified a preferred provider organization (PPO) network--Coventry Pend and Transmit, or Coventry P&T--and each EOBR explained that the PPO reduction was made pursuant to the terms of Dr. Aponte's/Body Contouring, Inc.'s contract with Aetna. Dr. Aponte seeks to contest these PPO reductions because he claims that the contract with Aetna was terminated. The merits of the reimbursement disputes are not at issue, however. The sole issue presented is whether the Department should accept Dr. Aponte's petitions and proceed to resolve the reimbursement disputes presented. Case No. 19-1517 On May 2, 2018, an injured worker had a 15-minute outpatient office visit with Dr. Aponte at Body Contouring, Inc. Dr. Aponte submitted a bill for the 15-minute outpatient office visit to the employer's carrier. The billed amount was $125.00. The bill was adjusted by the carrier for two reasons explained in an EOBR issued on May 11, 2018. The carrier reduced the charge because it exceeded the fee schedule allowance in the Florida Workers Compensation Health Care Provider Reimbursement Manual (Provider Manual). The carrier also reduced the charge by an additional $25.37, based on a written contractual arrangement. The EOBR identified the "PPO Network" as Coventry Pend and Transmit, or Coventry P&T, and the explanatory notes indicated that the Coventry P&T PPO reduction was "in accordance with your Aetna contract." After the two adjustments, Dr. Aponte was paid $54.63. The May 11, 2018, EOBR included the notice required by the Department for carrier EOBR forms. The notice specified that the health care provider may elect to contest the disallowance or adjustment of payment under section 440.13(7), and that such an election must be made by the provider within 45 days of receipt of the EOBR. Dr. Aponte did not timely serve a Petition for Resolution of Reimbursement Dispute on the Department to contest the adjustments in the May 11, 2018, EOBR. Instead, he communicated directly with the carrier. Ultimately, on February 6, 2019, Dr. Aponte resubmitted the same bill to the carrier for the 15-minute outpatient office visit on May 2, 2018, with the same $125.00 charge, and asked the carrier to reconsider. That same day--February 6, 2019--the carrier issued a second EOBR. The EOBR indicated that payment of the resubmitted $125.00 bill was disallowed in its entirety, and gave the following explanation: "billing error: duplicate bill." Dr. Aponte prepared a Petition for Resolution of Reimbursement Dispute on the form required by the Department (incorporated by reference in a rule), and served it on the Department on February 8, 2019. Dr. Aponte's petition asserted that the EOBR he was contesting was received on February 6, 2019, which was the date on which the second EOBR was issued. Dr. Aponte identified a single issue in dispute: whether the carrier improperly adjusted the charge by applying a PPO network reduction of $25.37. Dr. Aponte contended that "there is no contract between Luis Aponte, MD/Body Contouring[,] Inc.[,] and Coventry." However, the PPO network adjustment was not made in the February 6, 2019, EOBR. The adjustment Dr. Aponte wanted to contest was made in the May 11, 2018, EOBR. Dr. Aponte attached both the May 11, 2018, EOBR and the February 6, 2019, EOBR to his petition. He added the following explanation for attaching the two EOBRs: "A petition for resolution of reimbursement dispute was previously submitted to the FL Dept. Financial Services on 07/30/18 initiating this reimbursement dispute." The Department reviewed the petition and attachments to determine if the petition was timely served. Since the 45-day window to serve a petition begins to run upon receipt of the EOBR, the Department has a "computation of time" rule providing alternative ways for a provider to prove the date of EOBR receipt. See Fla. Admin. Code R. 69L-31.008. One way is by showing a date stamp affixed by the provider to the EOBR on the date of receipt. Another way is through a verifiable login process. The third way is to show the postmark date on the envelope in which the EOBR was received, in which case five calendar days is added to the postmark date to allow for mail time. If the provider does not utilize one of these three methods to prove the date of receipt, the Department will use the "default" method in its rule, whereby the EOBR receipt date is deemed to be five calendar days after the date on which the EOBR was issued. Dr. Aponte did not utilize one of the three options in the Department's rule, which are set forth in the form petition, to prove the dates on which he received either EOBR. As noted above, he completed the petition by giving only the date on which he received the second EOBR. The Department applied the default method in its rule to determine the receipt date of the first EOBR, which is the EOBR that made the PPO reduction adjustment sought to be challenged. The Department determined that Petitioner was deemed to have received the first EOBR on May 16, 2018. Accordingly, the deadline for serving a petition to contest the adjustments in the May 11, 2018, EOBR was June 30, 2018, 45 calendar days after May 16, 2018. The Petition for Resolution of Reimbursement Dispute at issue in this case, served on the Department on February 8, 2019, was more than seven months too late.3/ Petitioner offered no evidence or argument to excuse his untimely submittal. Case No. 19-2653 Dr. Aponte provided services to an injured worker at Body Contouring, Inc., on October 10, 2018, and October 31, 2018, for which Dr. Aponte submitted bills to the employer's carrier. Bill for Services on October 10, 2018 On October 10, 2018, Dr. Aponte saw the patient for an outpatient office visit at Body Contouring, Inc., at which Dr. Aponte provided prolonged evaluation and management (E&M). Dr. Aponte's charges submitted to the carrier were $450.00 for the office visit and $220.00 for the prolonged E&M service. An EOBR was issued on November 16, 2018, adjusting both charges for two reasons explained in the EOBR. Both charges were reduced because they exceeded the fee schedule in the Provider Manual. Both charges were further reduced by a total of $79.91 pursuant to a written contractual arrangement. The EOBR explained these adjustments as Coventry P&T PPO reductions "in accordance with your Aetna contract." After the adjustments, Dr. Aponte was paid $260.09. The 45-day deadline to serve a petition on the Department to contest the adjustments explained in the November 16, 2018, EOBR was January 5, 2019 (using the default methodology to determine the EOBR receipt date in the absence of any other evidence). Dr. Aponte did not timely serve a Petition for Resolution of a Reimbursement Dispute on the Department to contest the adjustments in the November 16, 2018, EOBR. Instead, he communicated directly with the carrier and requested a re- evaluation of the bill. The carrier issued a second EOBR on December 31, 2018, disallowing payment of both line item charges on the resubmitted bill. The explanation in the EOBR for disallowing payment was "billing error: line item service previously billed and reimbursement decision previously rendered." Bill for Services on October 31, 2018 On October 31, 2018, Dr. Aponte saw the same injured worker for another outpatient office visit at Body Contouring, Inc., at which the patient received two injections. Dr. Aponte's charges submitted to the carrier were: $300.00 for the office visit; $330.00 for one injection; and $100.00 for the other injection. An EOBR was issued on November 21, 2018, adjusting the office visit charge and disallowing the two injection charges, for reasons explained in the EOBR. The $300.00 office visit charge was reduced because it exceeded the fee schedule allowance in the Provider Manual. The charge was further reduced by $48.16, pursuant to a written contractual arrangement. The EOBR explained the latter reduction as a Coventry P&T PPO reduction, "in accordance with your Aetna contract." The EOBR also explained that both injection charges were disallowed because the documentation did not substantiate that the services billed were rendered. After the adjustments and the disallowances, Dr. Aponte was paid $110.84. The 45-day deadline to serve a petition on the Department to contest the adjustments or disallowances in the November 21, 2018, EOBR was January 10, 2019 (using the default methodology to determine the EOBR receipt date in the absence of any other evidence). Dr. Aponte did not timely serve a petition for resolution of a reimbursement dispute on the Department to contest the adjustments in the November 21, 2018, EOBR. Instead, he communicated directly with the carrier and requested a re- evaluation of the bill. The carrier issued another EOBR on December 27, 2018, disallowing payment of the resubmitted bill for services rendered on October 31, 2018. The reason given for disallowing payment as to each of the three charges on the bill was "billing error: line item service previously billed and reimbursement decision previously rendered."4/ Dr. Aponte prepared a Petition for Resolution of Reimbursement Dispute on the required form, seeking to contest the PPO adjustments made to the bills for services rendered to the same injured employee on October 10 and 31, 2018. He attached only the final re-evaluation EOBRs, issued December 31, 2018 (for the bill for services on October 10, 2018), and December 27, 2018 (for the bill for services on October 31, 2018). Dr. Aponte named the Petitioner as "Luis Aponte/Body Contouring, Inc." The instructions on the form specify that the named Petitioner must be a health care provider as defined in section 440.13(1)(b). Dr. Aponte gave a single date--January 7, 2019--as the EOBR receipt date. However, he did not select the method used to establish the EOBR receipt date, as provided in the form petition. The form instructs that if the EOBR receipt date is not established by one of the specified methods, then the EOBR receipt date will be deemed to be five days from the issue date on the EOBR. Dr. Aponte identified the issue in dispute as the PPO adjustments applied to the bills. However, neither of the re- evaluation EOBRs attached to the petition made any PPO adjustment. Dr. Aponte identified the disputed amount of the PPO adjustments as $162.69. That is the sum of the PPO adjustments made in the November 16, 2018, EOBR ($79.91), the November 21, 2018, EOBR ($48.16), and the December 7, 2018, EOBR ($34.62) (see endnote 4). Dr. Aponte did not attach any of the EOBRs that made the disputed PPO adjustments, but he did attach a letter that he identified and explained as follows: "A copy of the contract termination notice sent to Aetna has been provided."5/ The Department reviewed the petition for completeness. The Department evaluator noted that the attached EOBRs were identified as "Re-evaluation" EOBRs that did not make the disputed PPO adjustments. However, no timeliness determination could be made because the EOBRs that explained the PPO adjustments were not attached. In addition to failing to attach the relevant EOBRs, the petition was found to also be deficient in several other respects. The Department identified all perceived deficiencies in a Notice of Deficiency sent to Dr. Aponte by certified mail. He was instructed to correct all of the deficiencies within ten days after his receipt of the notice. Dr. Aponte timely responded, and cured all perceived deficiencies except one. The Department had found the petition deficient because it named as the petitioner "Luis Aponte/Body Contouring, Inc." However, the instructions on the form petition emphasize that the named petitioner had to be a "health care provider" as defined in section 440.13(1)(g). The Notice of Deficiency required a new form petition curing "Petitioner name and mailing address. This is the provider name, not the business name." The directive is not very clear. It could be interpreted as describing what is in the petition Dr. Aponte submitted ("This is"), instead of describing what should have been in the petition. Dr. Aponte's transmittal letter, listing the documents enclosed to cure the deficiencies, states that he provided a completed petition with the Petitioner's name and address. The transmittal letter was signed, with the following typed on two separate lines below the signature line: "Luis Aponte, MD" and "Body Contouring, Inc." The enclosed petition, however, named the Petitioner in the same manner as in the original petition: "Luis Aponte/Body Contouring, Inc." The undersigned appreciates the Department's concern that a Petition for Resolution of Reimbursement Dispute must be submitted by a "health care provider" meeting the statutory definition. But in this instance, the Department was well aware that the health care provider was Luis Aponte, M.D., as were the carriers involved in reviewing and adjusting his bills, and issuing the EOBRs that Dr. Aponte is seeking to contest. Indeed, the Department's initial decision, set forth in a Reimbursement Dispute Dismissal, names the Petitioner as "Luis Aponte, M.D." The Department's Reimbursement Dispute Dismissal recites that Dr. Aponte failed to provide the curative documentation as required in the Notice of Deficiency. At hearing, the Department, through its evaluator who signed the Reimbursement Dispute Dismissal, testified that the sole deficiency not cured by Dr. Aponte was to name a petitioner that met the definition of a "health care provider." According to the Department, Dr. Aponte needed to add "M.D." after his name on the petition (as he did in the transmittal letter). The Department's evaluator also testified that since she determined that the petition had to be dismissed for failure to cure this deficiency, she did not go on to address the timeliness issue that could not be determined previously without the relevant EOBRs. Had the evaluator determined the deficiencies to be cured, she would have proceeded to assess the relevant EOBRs, which were provided by Dr. Aponte in response to the deficiency notice. She would have determined that the petition was not served on the Department within 45 days of receipt of the EOBRs that explained the contested PPO adjustments, and she would have dismissed the petition as untimely. Based on the Department's evidence and an independent assessment of the facts by which timeliness is determined, the undersigned finds that Dr. Aponte's petition, served on February 8, 2019, was not timely. The 45-day deadlines to serve petitions contesting the PPO adjustments explained in three different EOBRs were: January 5, 2019 (for the November 16, 2018, EOBR); January 10, 2019 (for the November 21, 2018, EOBR); and January 19, 2019 (for the December 7, 2018, EOBR). Dr. Aponte's petition was untimely, and not just by a day or two, but by at least 20 days. He offered no evidence or argument to excuse his untimely submittal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in these consolidated cases by the Department of Financial Services, Division of Workers' Compensation, dismissing as untimely the Petitions for Resolution of Reimbursement Dispute submitted by Petitioner, Luis Aponte, M.D. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 4th day of October, 2019.
Findings Of Fact The Petition named Dr. Carlin as the physician providing obstetric services at Bradley’s birth on March 27, 2014. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Faith Carlin indicates that in the year 2014, the year in which Dr. Carlin participated in the delivery of Bradley Miller, as indicated in the Petitioners’ Petition for Benefits, Dr. Carlin did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Carlin in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Carlin paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physicians. The physician payment history/report for Dr. Carlin supports Mr. Daughtry’s affidavit. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Carlin had not paid her $5,000 assessment for 2014. At the time of the birth of Bradley, Dr. Carlin was not a participating physician in the Plan.
Findings Of Fact The Amended Petition named Dr. Wanis as the physician providing obstetric services at Cherica’s birth on February 17, 2014. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Sameh F. Wanis, indicates that in the year 2014, the year in which Dr. Sameh F. Wanis participated in the delivery of Cherica Fremond, as indicated in the Petitioner’s Petition for Benefits, Dr. Sameh F. Wanis did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth- Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Sameh F. Wanis in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Sameh F. Wanis paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physician. The physician payment history/report for Dr. Wanis supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Wanis had not paid his $5,000 assessment for 2014. At the time of the birth of Cherica, Dr. Wanis was not a participating physician in the Plan.
