Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations, thereby permitting the Division of Administrative Hearings to exercise jurisdiction for the conduct of a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
Findings Of Fact On December 13, 1995, and again on January 12, 1996, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on December 2, 1994, charging an unlawful employment practice by Respondent. On October 11, 1995, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice had occurred. Notice of that determination was served on Petitioner at his Quincy, Florida address by regular mail. The "Notice of Determination: No Cause" served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF with 35 days of the date of this NOTICE OF DETER- MINATION: NO CAUSE. The "Notice of Determination: No Cause" also contained the following statement: If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Petitioner received the Notice of Determination. Sometime after receipt of the notice, Petitioner telephoned the FCHR and spoke with a secretary who again explained the necessity of filing a Petition For Relief to Petitioner within the specified time limits. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause. No evidence was presented by Petitioner that he did not receive the mail notice of the FCHR determination in a timely fashion sufficient to permit his timely filing of a Petition For Relief.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 95-6018 and FCHR Case No. 94-E334, for failure to timely file the Petition. DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th of March, 1996. COPIES FURNISHED: Lorenzo McGill Route 7, Box 4096 Quincy, Florida 32351 Kimberly L. King, Esquire Messer, Caparello, Madsen, et al. Post Office Box 1876 Tallahassee, Florida 32302-1876 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Ronald M. McElrath, Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
The Issue Whether Petitioner ADCO Billing Solutions, L.P.’s (ADCO), Petition for Resolution of Reimbursement Dispute is entitled to be considered on the merits, or whether it should be dismissed.
Findings Of Fact The Department is the state agency with jurisdiction to resolve reimbursement disputes between health care providers and carriers, pursuant to section 440.13(7), Florida Statutes. Chapter 440 is known as the Florida’s Workers’ Compensation Law. See § 440.01, Fla. Stat. Michael S. Schurdell, M.D., a physician (Dr. Schurdell), is a “health care provider” as defined in section 440.13(1)(g). ADCO is an agent for Dr. Schurdell, responsible for preparing, processing, and submitting workers’ compensation bills for repackaged prescription medication to insurers and carriers on Dr. Schurdell’s behalf. Zenith Insurance Company (Zenith), a nonparty to this proceeding, is considered a “carrier” as defined in section 440.13(1)(c). The Florida’s Workers’ Compensation Law, and its implementing rules, govern the process through which health care providers and carriers review and make determinations on health care provider bills. A carrier’s bill review, under section 440.13(6), and implementing rules, culminates in a reimbursement decision to either pay the bill, or to disallow, adjust, or deny payment. An Explanation of Bill Review (EOBR) is “the document used to provide notice of payment or notice of adjustment, disallowance or denial by a claim administrator or any entity acting on behalf of an insurer to a health care provider[.]” Fla. Admin. Code R. 69L-7.710(y). Pursuant to Florida Administrative Law Rule 69L-7.740(14), a carrier (or its claim administrator) must use an EOBR that details the reasons for a reimbursement decision for each line item. The EOBR must reflect EOBR codes (up to three for each line item billed), which are reasons for the reimbursement decision. The EOBR is what triggers a health care provider’s option to submit a petition for resolution of reimbursement dispute with the Department, pursuant to section 440.13(7). Section 440.13(7) provides, in pertinent part: (7) UTILIZATION AND REIMBURSEMENT DISPUTES.— (a) Any health care provider who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 45 days after receipt of notice of disallowance or adjustment of payment, petition the department to resolve the dispute. The petitioner must serve a copy of the petition on the carrier and on all affected parties by certified mail. The petition must be accompanied by all documents and records that support the allegations contained in the petition. Failure of a petition to submit such documentation to the department results in dismissal of the petition. Melissa Malarae, a nonparty to this proceeding, sought medical treatment from Dr. Schurdell, as a result of a workplace injury that occurred on August 31, 1998. Ms. Malarae subsequently filed a Petition for Workers’ Compensation Benefits on August 29, 2002, with the Office of the Judges of Compensation Claims (OJCC), in a matter styled Melissa Malarae v. TLC Child Care Center of Sarasota and Zenith Insurance Company, OJCC Case Number 02- 034031RLD. Dr. Schurdell provided medical care related to the 1998 workplace injury and dispensed prescription medications to Ms. Malarae on August 8, 2019. Notably, two of the prescription medications that Dr. Schurdell prescribed and dispensed were “Lidocaine Ointment 5%” and “Diclofenac Sodium Solution 1.5%.” On August 8, 2019, ADCO, on behalf of Dr. Schurdell, submitted a “Health Insurance Claim Form” for prescription medications he had prescribed and dispensed, to Zenith, Ms. Malarae’s employer’s workers’ compensation carrier, for payment. As Zenith had not paid for those prescription medications, on February 18, 2020, Ms. Malarae (through her attorney, Ronald S. Fanaro, Esquire) filed another Petition for Workers’ Compensation Benefits, in OJCC Case No. 02-034031RLD, seeking payment for prescription medications that ADCO, on behalf of Dr. Schurdell, submitted to Zenith. On March 11, 2020, Zenith filed a Response to Petition for Benefits in OJCC Case No. 02-034031RLD. In the portion of the Response to Petition for Benefits entitled “Response to Each Benefit Requested,” Zenith stated: Petition(s) 02/18/2020(9) are covered by this response. Payment in the amount of $29,942.34 to ADCO Billing Solutions. Attorney Fees and Costs. Response: The EC denies entitlement to attorney fees as the requested benefits are being paid within 30 days of the Petition. The EC agrees to reimburse taxable costs associated with obtaining benefits in the Petition. However, also on March 11, 2020, Zenith issued an EOBR that adjusted the August 8, 2019, payment for medications listed on the Health Insurance Claim Form. The March 11, 2020, EOBR indicated a significant downward adjustment of payment for the “Lidocaine Ointment 5%” and “Diclofenac Sodium Solution 1.5%” that ADCO requested. Mr. Chenchick, the collections manager for ADCO that sought reimbursement for the multiple medications Dr. Schurdell dispensed to Ms. Malarae (including the Lidocaine Ointment and Diclofenac Sodium Solution), testified that he worked with Mr. Fanaro in the filing of the February 18, 2020, Petition for Workers’ Compensation Benefits, to seek reimbursement in the amount of $29,942.34. Mr. Chenchick testified that, following receipt of Ms. Malarae’s Petition for Workers’ Compensation Benefits: [T]hey [Zenith] rescinded their denial. That was the response from Zenith. It was from the adjuster, Katy Lamb. It was another document that said we rescind, and, you know, there was a guarantee of payment of that [$]29,942.34. Mr. Chenchick testified that he considered Zenith’s March 11, 2020, response to the February 18, 2020, Petition for Workers’ Compensation Benefits a “guarantee of payment[,]” and that he believed that Zenith would make full payment for the multiple medications at issue. Mr. Chenchick testified that on March 17, 2020—after he received Zenith’s March 11, 2020, response to the Petition for Workers’ Compensation Benefits—he received the EOBR, dated March 11, 2020, and payment from Zenith. Mr. Chenchick testified: So the other dates of service were reimbursed properly. This was the only date of service that was – that we were taking issue with, this date of service of 8/8/2019, and the billed amount was, yeah, $13,536.43, and for that date of service, we were only reimbursed $349.67. After receiving the March 11, 2020, EOBR, which Mr. Chenchick considered a “short pay,” Mr. Chenchick contacted Zenith’s bill review department on March 27, 2020, to discuss this discrepancy. Mr. Chenchick testified that a “short pay” error was common, and that ADCO regularly addressed such an error with carriers directly, as opposed to utilizing the dispute resolution process with the Department, pursuant to section 440.13(7). Mr. Chenchick further testified concerning the alleged “short pay” of the two prescription medications: What we had in this one, which typically we don’t, was the – a guarantee of payment is what I considered it where they rescinded and said they would be paying the bills. So when I had that in my hand saying we are rescinding the denial, we will pay this amount, and then an amount comes in that’s lower than that. . . . I didn’t feel at that time that I needed to submit anything to the State because it was still under review. It had not hit a hard denial. ADCO did not contest the March 11, 2020, EOBR, pursuant to the procedure set forth in section 440.13(7), and, therefore, did not petition the Department within the 45-day requirement contained in this provision. Nor did ADCO and Zenith submit a Joint Stipulation of the Parties to the Department, pursuant to rule 69L-31.012, which would have allowed the parties to “mutually stipulat[e] in writing that the reimbursement dispute be held in abeyance for a specified time period, not to exceed sixty (60) calendar days, for the parties to seek a resolution of the reimbursement dispute without the need for a determination by the Department.” Instead, Mr. Chenchick testified that he continued to negotiate with Zenith concerning the payment discrepancy through May 2020. On May 20, 2020, Mr. Chenchick, on behalf of ADCO, sent Zenith an “Appeal for Reconsideration,” that explained ADCO’s position that Zenith had short-paid the two prescription medications. On May 27, 2020, Zenith issued a second, separate EOBR, that ADCO received on June 3, 2020 (Second EOBR). The Second EOBR differed from the March 11, 2020, EOBR, in that it only concerned the two prescription medications at issue here, and that Zenith completely disallowed payment ($13,536.43) for them. ADCO filed a Petition for Resolution of Reimbursement Dispute with the Department on June 19, 2020, which the Department received on June 30, 2020, 27 days after ADCO received the Second EOBR. At the time Zenith issued the Second EOBR, the August 8, 2019, billing remained at issue in OJCC Case No. 02-034031RLD. A June 10, 2020, mediation agreement, signed by Ms. Malarae, Mr. Fanaro, and a representative from Zenith, states, in part: Parties agree as follows: Regarding PFB of 2/18/20, the outstanding bills submitted by ADCO Billing Solutions have been paid and accepted by E/C, with the exception of prescriptions for Date of Service 8/8/19 for Diclofenac and Lidocaine ointment. E/C made a payment for the 8/8/19 prescriptions, but the provider is disputing the amount paid. This dispute between the E/C and the billing provider is not within the purview of the JCC, who is without jurisdiction to address such billing disputes, and must be handled administratively. The Department assigned Ms. Paulk, a registered nurse consultant with the Department’s Bureau of Monitoring and Audit within its Medical Services Section, to review ADCO’s Petition for Resolution of Reimbursement Dispute. Her job duties include reviewing petitions for resolution reimbursement disputes for deficiencies, under section 440.13(7) and rules 69L-31 and 69L-7. Ms. Paulk reviewed ADCO’s Petition for Resolution of Reimbursement Dispute, dated June 19, 2020, and compared it to the date ADCO received an EOBR that would trigger section 440.13(7)’s 45-day deadline for this process. Ms. Paulk testified that she reviewed the two EOBRs, and noted that both indicated a “disallowance or adjustment of payment” for the two prescription medications. Under this circumstance, Ms. Paulk testified that the Department used the earlier, March 11, 2020, EOBR for purposes of calculating the deadline for a petition for resolution of reimbursement dispute. As ADCO’s Petition for Resolution of Reimbursement Dispute was filed more than 45 days after the March 11, 2020, EOBR, the Department dismissed it as untimely served on the Department, pursuant to section 440.13(7). Ms. Paulk admitted, on cross-examination, that when she made the decision to dismiss ADCO’s Petition for Resolution of Reimbursement Dispute, she was unaware of OJCC Case No. 02-034031RLD, had no contact with either ADCO or Zenith, and that the March 11, 2020, EOBR and the Second EOBR were not identical, as the March 11, 2020, EOBR actually reflected an adjustment of the amounts for reimbursement for the two prescription medications (i.e., Zenith would pay an amount for the two prescriptions totaling $349.67), while the Second EOBR reflected that Zenith completely disallowed payment in full for the two prescriptions. The undersigned finds that the March 11, 2020, EOBR differs from the Second EOBR. The March 11, 2020, EOBR reflected a downward adjustment for the two prescription medications. The Second EOBR reflects that Zenith completely disallowed payment for these two prescriptions. Additionally, the March 11, 2020, EOBR considered additional dates of service, which were not at issue in the Second EOBR. With respect to the payment for the two prescription medications at issue between ADCO and Zenith, the March 11, 2020, EOBR also conflicts with Zenith’s Response to Petition for Benefits in OJCC Case No. 02- 034031RLD, in which Zenith admitted that it would pay for all of the medications (including the two prescription medications at issue) listed in ADCO’s August 8, 2019, Health Insurance Claim Form. The OJCC was the wrong forum for Ms. Malarae to seek payment for these two medications. See § 440.13(7), Fla. Stat. However, Zenith’s response, and Mr. Chenchick’s testimony that ADCO considered it a “guarantee of payment,” establishes that ADCO had been lulled or misled into inaction, as ADCO relied on Zenith’s response, and reasonably believed that the adjustment reflected in the March 11, 2020, EOBR was erroneous. Mr. Chenchick’s additional testimony concerning ADCO’s attempt to reconcile what he believed to be a common error known as “short pay,” reflected in the March 11, 2020, EOBR (which he received after Zenith filed its Response to Petition for Benefits), is further evidence that ADCO reasonably believed that Zenith intended to pay, in full, the amount of the two prescription medications at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Department of Financial Services, Division of Workers’ Compensation, enter an Order that reinstates the Petition for Resolution of Reimbursement Dispute filed by ADCO Billing Solutions. DONE AND ENTERED this 2nd day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Keith C. Humphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Ralph Paul Douglas, Esquire McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A. Suite 200 1709 Hermitage Boulevard Tallahassee, Florida 32308 S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2021. Marc J. Semago, Esquire FL Legal Group Suite 400 2700 West Dr. MLK Jr Boulevard Tampa, Florida 33607 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Services Room 612.17, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
