09-006875 Guarantee Insurance Company vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Thursday, June 17, 2010.

Summary: Respondent and Intervenor established that the proper billing code was used, consistent with the agency's long-standing interpretation of its rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUARANTEE INSURANCE COMPANY, )

)

Petitioner, )

)

vs. )

) Case No. 09-6875

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF )

WORKERS’ COMPENSATION, )

)

Respondent, )

)

and )

)

LARGO MEDICAL CENTER, INC., )

d/b/a LARGO MEDICAL CENTER, )

)

Intervenor. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on March 24

and 25, 2010, in Tallahassee, Florida, before Barbara J. Staros,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Cindy R. Galen, Esquire

Eraclides, Johns, Hall, Gelman

Johannssen & Goodman, LLP

2030 Bee Ridge Road

Sarasota, Florida 34239

For Respondent: Mari H. McCully, Esquire

Cynthia Jakeman, Esquire

Department of Financial Services

Division of Workers’ Compensation

200 East Gaines Street

Tallahassee, Florida 32399

For Intervenor: Richard M. Ellis, Esquire

Rutledge, Ecenia & Purnell, P.A.

119 South Monroe, Suite 202

Post Office Box 551

Tallahassee, Florida 32302

STATEMENT OF 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?

PRELIMINARY STATEMENT

On November 13, 2009, the Department of Financial Services,

Division of Workers’ Compensation (the Department) issued a

Workers’ Compensation Medical Services Reimbursement Dispute

Determination (the Determination) pursuant to Section 440.13(7),

Florida Statutes, finding that Guarantee Insurance Company

(Guarantee) must reimburse Largo Medical Center (Largo) a total

amount of $5,913.79 for services rendered to injured employee

M.C. Guarantee and Qmedtrix Systems, Inc. (Qmedtrix) timely

filed a Petition for Administrative Hearing challenging the

Determination.

The Petition was transmitted to the Division of

Administrative Hearings on or about December 18, 2009. Largo

filed a Petition to Intervene, which was granted. A telephonic

motion hearing was held on March 5, 2010. Following the

hearing, the undersigned entered an Order on Pending Motions

which denied the Department’s Motion for Summary Recommended

Order, granted Petitioners’ Motion to Redact Public Information

from Exhibits, and granted Petitioners’ Motion to Amend. As a

result, the style of the case was amended to reflect that

Qmedtrix was no longer a party in this proceeding, and that

Guarantee became the sole Petitioner. Largo’s Unopposed Motion

for Taking Official Recognition was granted.

The case proceeded to hearing as scheduled on March 24 and

25, 2010. Case numbers 09-6876 and 09-6877 were heard

simultaneously with this case, but the three cases were not

consolidated. Separate Recommended Orders will be entered for

those related cases.

At hearing, Largo presented the testimony of Allan W.

March, M.D. Largo offered Exhibits numbered 1 through 7, 24,

25, 27, and 28, which were admitted into evidence. The

Department adopted Largo’s case-in-chief as its own. Petitioner

presented the testimony of William von Sydow and David Perlman,

M.D. Petitioner’s Exhibits numbered 1 through 5, 10 through 14

and 28 were admitted into evidence. Rulings were reserved on

Petitioner’s Exhibits 6, 8 and 9. Upon consideration,

Petitioner’s Exhibits 6, 8, and 9 are rejected. 1/ Petitioner’s

Exhibit 7 was proffered.

A four-volume transcript was filed on April 12, 2010. The

parties timely filed Proposed Recommended Orders which have been

duly considered in the preparation of this Recommended Order.

All references to the Florida Statutes are to 2009.

FINDINGS OF FACT

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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

Largo’s claim.

10. 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.”

11. 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.

12. 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.

13. Qmedtrix, acting as Guarantee’s representative, then

filed Guarantee’s Response to Petition for Resolution of

Reimbursement Dispute and attachments with the Department.

14. 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.”

15. 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.

16. 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).

17. 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

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. The claim submitted by Largo was sent to Qmedtrix for

a bill review. Its data elements were first entered into

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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. Dr. Perlman acknowledged, however, that hospitals are

free to use the ACEP guidelines and that many hospitals do so.

31. 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.

32. 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.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

34. This proceeding, as all other proceedings conducted

under Section 120.57(1), Florida Statutes, is de novo in nature.

See § 120.57(1)(k), Fla. Stat.

35. Generally, unless there is a statute which provides

otherwise, the party asserting the affirmative of an issue has

the burden of proof. See Department of Transportation v. J.W.C.

Co. , Inc., 396 So. 2d at 778, (Fla. 1st DCA 1981); Balino v.

Dept. of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). It was Largo which petitioned the

Department for affirmative relief and agency action, i.e. , a

determination that the Petitioner improperly disallowed payment.

See § 440.13(7)(a). Accordingly, Largo, as the health care

provider who is asserting entitlement to reimbursement for

medical services provided to M.C., has the burden of proving

that the charges for the services provided do not constitute

over-utilization or a billing error.

36. The standard of proof is a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

37. This case involves a reimbursement dispute under

Section 440.13(7), Florida Statutes. Section 440.13, Florida

Statutes, reads in pertinent part:

(6) UTILIZATION REVIEW--Carriers shall

review all bills, invoices, and other

claims for payment submitted by health care

providers in order to identify

overutilization and billing errors,

including compliance with practice

parameters and protocols of treatment . . .

If a carrier finds that overutilization of

medical services or a billing error has

occurred, or there is a violation of the

practice parameters and protocols of

treatment established in accordance with

this chapter, it must disallow or adjust

payment for such services or error without

order of a judge of compensation claims or

the department, if the carrier, in making

its determination, has complied with this

section and rules adopted by the agency.

(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 30 days after

receipt of notice of disallowance or

adjustment of payment, petition the

department to resolve the dispute. The

petitioner must serve a copy of the petition

on the carrier and on all affected parties

by certified mail. The petition must be

accompanied by all documents and records

that support the allegations contained in

the petition. Failure of a petitioner to

submit such documentation to the agency

results in dismissal of the petition.

(b) The carrier must submit to the

department within 10 days after receipt of

the petition all documentation

substantiating the carrier's disallowance or

adjustment. Failure of the carrier to

timely submit the requested documentation to

the agency within 10 days constitutes a

waiver of all objections to the petition.

(c) Within 60 days after receipt of all

documentation, the department must provide

to the petitioner, the carrier, and the

affected parties a written determination of

whether the carrier properly adjusted or

disallowed payment. The department must be

guided by standards and policies set forth

in this chapter, including all applicable

reimbursement schedules, practice

parameters, and protocols of treatment, in

rendering its determination.

(d) If the department finds an improper

disallowance or improper adjustment of

payment by an insurer, the insurer shall

reimburse the health care provider,

facility, insurer, or employer within 30

days, subject to the penalties provided in

this subsection.

(e) The department shall adopt rules to

carry out this subsection. . . .

* * *

(11) AUDITS.--

(c) The department has exclusive

jurisdiction to decide any matters

concerning reimbursement, to resolve any

overutilization dispute under subsection

(7). . . .

* * *

(12) CREATION OF THREE-MEMBER PANEL; GUIDES

OF MAXIMUM REIMBURSEMENT ALLOWANCES.--

(a) A three member panel is created . . .

[which] shall determine statewide schedules

of maximum reimbursement allowances for

medically necessary treatment, care, and

attendance by physicians, hospitals,. . .

All compensable charges for hospital

outpatient care shall be at 75 percent of

usual and customary charges , except as

otherwise provided by this subsection.. . .

(emphasis supplied)

38. Thus, subsection (6) requires carriers to review all

bills for payment submitted by health care providers for errors.

Subsection (7) sets forth the procedure for resolving disputes

concerning payments for services rendered to injured workers.

39. Pursuant to Subsection 440.13(7)(e), Florida Statutes,

the Department has adopted Florida Administrative Code Rule 69L-

7.501, which incorporates by reference the Reimbursement Manual

for Hospitals, 2006 Edition (the Manual), which provides in

pertinent part:

Section X: Outpatient Reimbursement

A. 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. [2/]

40. At issue in this proceeding is whether reimbursement

to Largo should be based upon the individual hospital’s usual

charge or should instead be based upon the usual and customary

charge of all hospitals within the same geographic area.

Relying primarily on One Beacon Insurance v. Agency for Health

Care Administration , supra , Petitioner argues that reimbursement

should be based upon the usual and customary charge in the

community. In its Petition for Administrative Hearing,

Guarantee contends that the Department “misinterpreted and

misapplied Rule 69L-7.501, F.A.C. . . . [Hospital Manual]

contrary to the provisions of Section 440.13(12), Fla. Stat.

(2009).”

41. The Department has consistently applied the 2006

Manual to refer to the individual hospital’s “usual and

customary charges.” ( See cases officially recognized referenced

in and attached to Largo’s Unopposed Motion for Taking Official

Recognition.)

42. Until determined otherwise in a Section 120.56,

Florida Statutes, rule challenge proceeding, Florida

Administrative Code Rule 69L-7.501 is presumptively valid. Any

determination that a duly promulgated rule is contrary to a

statute is beyond the authority of the undersigned and is within

the purview of an appellate court. See Clemons v. State Risk

Management Trust Fund , 870 So. 2d 881, 884 (Fla. 1st DCA 2004)

(Benton, J., concurring). Accord , Amerisure Mutual Insurance

Company v. Agency for Health Care Administration , DOAH Case

No. 07-1755 (Order Relinquishing Jurisdiction and Closing File,

January 23, 2008) (Quattlebaum, A.L.J.); FFVA Mutual v. Agency

for Health Care Administration , DOAH Case. No. 07-5414 (Order,

March 26, 2008) (Wetherell, A.L.J.).

43. It is concluded that the Largo’s calculation of 75

percent of its usual and customary charge is consistent with the

Department’s long-standing interpretation of Florida

Administrative Code Rule 69L-7.501. Further, Largo established

by a preponderance of the evidence that the use of code 99284

did not constitute over-utilization or a billing error.

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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June, 2010.

ENDNOTES

1/ As to Exhibits 8 and 9, Respondent/Intervenors’ relevancy

objections are sustained. The witness testified that he did not

rely on these documents to form his opinion. Regarding Exhibit

6, Respondent/Intervenor argue that Petitioner did not comply

with Section 90.956, Florida Statutes, in that the originals or

duplicates of the data from which the summary is compiled was

not made available; and that it is impractical and may be

impossible to make available the thousands of individual

hospital claims that underlie the summaries sought to be

admitted. Petitioner argues that it offered to make available

the “underlying data” in so far as the data is part of several

sources of data for which the amount paid is based. However,

what Guarantee cannot do is make available the actual data used

by AHD in its summaries. Allowing access to Qmedtrix’ data and

providing links to other data sources does not equate to

providing access to the underlying data used by AHD in compiling

the summaries sought to be introduced by Guarantee. No one from

AHD, the entity which compiled the data submitted by various

hospitals to the federal government, testified. No one from the

reporting hospitals testified. Mr. von Sydow’s testimony cannot

be used as a conduit for impermissible hearsay statements to be

admitted as evidence. Gerber v. Iyengar , 725 So. 2d 1181 (Fla.

3rd DCA 1998). Further, this data is uncorroborated and,

therefore, is not sufficient in itself to support a finding of

fact as contemplated by Section 120.57(1)(c), Florida Statutes.

Whether Mr. von Sydow can rely on these facts in forming

his opinion is another matter. Petitioner argues that even if

the data is inadmissible, Mr. von Sydow may rely on this data to

form his opinion, citing Section 90.704, Florida Statutes. Upon

review of the record, the undersigned finds that the data are of

a type reasonably relied upon by experts in the subject in

forming their opinions. Accordingly, Respondent/Intervenor’s

motion to strike Mr. von Sydow’s testimony in this regard is

denied.

2/ The “verification and adjustment in accordance with Sections

XI and XII” of the Manual is not applicable in this case.

COPIES FURNISHED :

Cindy R. Galen, Esquire

Eraclides, Johns, Hall, Gelman

Johannssen & Goodman, LLP

2030 Bee Ridge Road

Sarasota, Florida 34239

Mari H. McCully, Esquire

Department of Financial Services

Division of Workers’ Compensation

200 East Gaines Street

Tallahassee, Florida 32399

Richard M. Ellis, Esquire

Rutledge, Ecenia & Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.