92-003319RP Jack Bradley, Jerry Balester, Thomas Englert, Donald H. Woeltjen, And Florida Chiropractic Association Inc. vs. Department Of Labor And Employment Security, Division Of Workers` Compensation Status: Closed DOAH Final Order on Wednesday, September 30, 1992.

Summary: Proposed rule which created "physical reconditioning" invalid because it recognized new medically necessary service without required peer review.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK BRADLEY, JERRY BALESTER, )

THOMAS ENGLERT, DONALD H. WOELTJEN, )

D.C., AND FLORIDA CHIROPRACTIC )

ASSOCIATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 92-3319RP

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, DIVISION )

OF WORKERS' COMPENSATION, )

)

Respondent. )

and )

)

FLORIDA PHYSICAL THERAPY )

ASSOCIATION, INC., )

)

Intervenor. )

________________________________________)

FINAL ORDER

The final hearing in the above-styled matter was heard pursuant to notice

by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative

Hearings, on July 21, 1992, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONERS: Stephen Marc Slepin, Esquire

Slepin & Slepin

1114 East Park Avenue

Tallahassee, FL 32301

Paul Watson Lambert, Esquire

2851 Remington Green Circle

Suite C

Tallahassee, FL 32308-3749

FOR RESPONDENT: Edward A. Dion, Esquire

Assistant General Counsel

Florida Department of Labor

and Employment Security

Tallahassee, FL 32399-2189

FOR INTERVENOR: Robert S. Cohen, Esquire

Haben, Culpepper, Dunbar

& French, P.A.

Post Office Box 10095

Tallahassee, FL 32302

STATEMENT OF THE ISSUES

Whether the Proposed Rules 38F-7.800 thru 7.807, published in Volume 18,

No. 19, Florida Administrative Weekly, promulgated by the Department of Labor

and Employment Security (DLES) exceeded the authority delegated to the

Department by the legislature. Specifically, whether (1) the Department's

proposed rules impinge upon the practice of medicine by chiropractors,

osteopaths, and homeopaths by restricting the reimbursement for care rendered

for certain defined types of care within defined time frames to an occupational

therapist and physical therapist, and (2) whether the department followed the

correct procedures in approving a new medically necessary service.

PRELIMINARY STATEMENT

The Petitioners challenged various portions of the rules proposed by DLES,

to include Rules 38F-7.800 thru 7.807, Florida Administrative Code, by

petitioner filed May 29, 1992. On June 2, 1992, the case was assigned to the

Hearing Officer, who set it for final hearing on June 19, 1992. On June 9,

1992, the Intervenor filed its Motion to Intervene. The Petitioners' moved to

continue the case without objection, and the matter was reset for July 21, 1992.

At the hearing, the Petitioners presented the testimony of three doctors of

chiropractic, and five exhibits. DLES presented two witnesses and three

exhibits. Intervenor presented the testimony of one witness and seven exhibits.

Joint exhibits 1-4 were also presented. All of the exhibits were received into

the record.

A transcript was prepared and filed August 7, 1992. Proposed Final Orders

were due to be filed on August 27, 1992; however, the parties requested and were

granted an extension. All of the parties submitted proposed findings which were

read and considered. The Petitioner's proposed final order did not contain any

paragraph numbers. All of the Petitioner's paragraphs are referred to in the

Final Order by their paragraph number beginning with paragraph 1 on the top of

page 1 through paragraph 83 on page 23. Appendix A states which of the findings

were adopted and which were rejected and why.

FINDINGS OF FACT

STANDING

1. The Department of Labor and Employment Security (DLES) is the agency

responsible for administering the state's workmans' compensation program and

promulgating the rules relating to workmans compensation which are the subject

of the challenge in this proceeding.

2. Donald H. Woeltjen, D.C., is a chiropractic physician licensed to

practice in the State of Florida pursuant to Chapter 460, Florida Statutes. He

treats patients who have been injured on the job, and receives compensation from

the treatment of these patients. He is President of the Florida Chiropractic

Association, Inc.

3. The Florida Physical Therapy Association, Inc., is a Florida

corporation organized by physical therapists licensed and working in the state.

The financial interests of physical therapists are directly affected by the

proposed rules and the challenge to the proposed rules.

4. The Florida Chiropractic Association, Inc., is a Florida corporation

representing doctors of chiropractic in the state. The financial interest of

chiropractors are directly affected by the proposed rules.

5. The time frames stated in the preliminary statement above for

publishing the proposed rules, filing the petition challenging them, and

intervening in this proceeding are adopted and made part of these findings of

fact.

GENERAL

6. Among the changes which may occur to the injured person is a loss of

physical conditioning as the result of the injury and treatment. Before the

patient can regain his or her physical abilities, that lost strength and control

must be regained. According to the department, the purpose of the proposed

rules are to provide health care for this type of remedial treatment to increase

endurance, strength, flexibility, and motor control. The department defined

this type of medical service as "physical reconditioning."

7. The particular portions of the proposed rules being challenged are

indicated by underlining below:

a. Proposed Rule 38F-7.802(1) provides:

"Physical reconditioning" means an intensive,

goal oriented, systematic process specifically

designed to restore an individual's systemic

neuromusculoskeletal structure and function

(strength, endurance, flexibility and motor

control).

b. Proposed Rule 38F-7.802(5) provides:

"Physical reconditioning provider" means an

occupational therapist, licensed pursuant to

Chapter 468, FS., or a physical therapis,

licensed pursuant to Chapter 486, FS.

c. Proposed Rule 38F-7.803(2) provides:

Physical reconditioning shall not begin before

30 days have elapsed following the injury nor

shall it begin or continue after 180 days

following the date of injury, except on the

specific recommenda-tion of a CARF-accredited

interdisciplinary team's evaluation which

includes musculoskeletal, behavioral, and

vocational issues as well as a functional

capacity evaluation (FCE) as provided in Rules

38F-8.021(7), F.A.C.

d. Proposed Rule 38F-7.806(2),e, provides:

Acute and sub-acute remedial physical medicine

services for the purpose of pain control,

muscular relaxation, improved circulation, and

remobili-zation to promote normal function,

which provided concurrently with a physical

reconditioning program, shall be authorized to

be provided solely by the physical

reconditioning provider and shall be included

in the reimbursement for the physical

reconditioning program. Examples of

modalities and procedures typically rendered

in acute and sub-acute levels of care included

moist heat, ice, electrical stimulation,

massage, low intensity stretching and range of

motion exercises, and training in proper body

mechanics.

e. Proposed Rule 38F-7.806(2),f, provides:

Acute or sub-acute remedial physical medicine

services as described in Rule 38F-7.806(1)(e),

F.A.C., shall not be reimbursed to any

physical medicine provider subsequent to 180

days from the injured employee's date of

accident unless there is a medical necessity,

documented by objective radiological findings

or a neurological deficit or a surgical

intervention necessitating the services.

8. In conjunction with the proposed rules, the department is including the

treatment modalities included in the numerical codes 97010 through 97145, 97530,

97531, 97540, 97541, 97701, 97720, 97752, and 97799 of the Workers' Compensation

Health Care Provider Reimbursement Manual, which is incorporated in the

Division's rules 38F-7.020, F.A.C., within "physical reconditioning."

9. These modalities are included in the term "physical medicine" and are

within the scope of practice of various types of physicians, to include

chiropractors, osteopaths, and homeopaths.

10. The department admits that these treatments are within the scope of

practice of physical medicine, and that under the rule these physicians will not

be reimbursed for rendering this care.

RULE MAKING AUTHORITY

11. Rulemaking authority is granted DLES in Sections 440.591, which

provides as follows:

440.591 Administrative procedure; rulemaking

authority. The division shall have the

authority to adopt rules to govern the

performance of any programs, duties, or

responsibilities with which it is charged

under this chapter.

12. In publishing the proposed rules, the department stated that the laws

implemented by the proposed rules are Sections 440.13,(1),(d) and (2),(d),

Florida Statutes, which provide as follows:

(1)(d) "Medically necessary" means any service

or supply used to identify or treat an illness

or injury which is appropriate to the

patient's diagnosis, consistent with the

location of service and with the level of care

provided. The service should be widely

accepted by the practicing peer group, should

be based on scientific criteria, and should be

determined to be reasonably safe. The service

may not be of an experimental, investigative,

or research nature, except in those instances

in which prior approval of the division has

been obtained. The division shall promulgate

rules providing for such approval on a

case-by-case basis when the procedure is shown

to have significant benefits to the recovery

and well-being of the patient.

(2)(d) If the employer fails to provide such

treatment, care, and attendance after request

by the injured employee, the employee may do

so at the expense of the employer, the

reasonableness and the necessity to be

approved by a judge of compensation claims.

The employee shall not be entitled to recover

any amount personally expended for such

treatment or service unless he has requested

the employer to furnish the same and the

employer has failed, refused, or neglected to

do so or unless the nature of the injury

required such treatment, nursing, and services

and the employer or the superintendent or

foreman thereof, having knowledge of such

injury, has neglected to provide the same.

Nor shall any claim for medical, surgical,

or other remedial treatment be valid and

enforceable unless, within 14 days following

the first treatment, except in cases where

first-aid only is rendered, within 14 days

following the date of maximum medical

improvement of the date of final treatment ,

and at such intervals as the division by

regulation may prescribe, the health care

provider or health care facility giving such

treatment or treatments furnishes to the

employer, or to the carrier if the employer

is not self-insured, a report of such injury

and treatment on forms prescribed by the

division; however, a judge of compensation

claims, for good cause, may excuse the failure

of the health care provider or health care

facility to furnish any report within the

period prescribed and may order the payment to

such employee of such remuneration for

treatment or service rendered as the judge of

compensation claims finds equitable. Along

with such reports, the health care provider

shall furnish a sworn statement that the

treatment or services rendered were reasonable

and necessary with respect to the bodily

injury sustained. The sworn statement shall

read as follows: "Under penalty of perjury,

I declare that I have read the foregoing; that

the facts alleged are true, to the best of my

knowledge and belief; and that the treatment

and services rendered were reasonable and

necessary with respect to the bodily injury

sustained."

13. The proposed rules in no way implement any portion of Section

440.13,(2),(d), supra, quoted above.

14. Section 440.13, supra, makes no mention of "physical reconditioning,"

"physical therapist," or "occupational therapist."

15. Section 440.13, supra, defines medical services and supplies

compensable under the act, and provides a mechanism for expanding those

services. Section 440.13, supra, also defines "Health care facility," Health

care provider," and "physician." Health care provider is defined by Section

440.13,(1),(b),supra, as,

. . . a physician or any recognized

practitioner who provides skilled services

pursuant to the prescription of or under the

supervision or direction of a physician.

PHASES FOR RECOVERY

16. It is accepted that an injured person may pass through three general

phases between injury and recovery or maximum medical improvement: acute,

subacute, and chronic.

17. The acute phase is the period immediately following the injury in

which treatment is directed at stopping bleeding, maintaining breathing, setting

bones, and reducing or eliminating swelling and pain to promoting healing. This

phase last from the time of injury until four to six weeks afterward. Nurses

and other health care professionals would render care to a patient during this

phase as prescribed and managed by the primary care physician. Primary care

physical treatment modalities are defined in the department's manual to include

hot or cold packs, traction, electrical stimulation, vasopneumatic devices,

paraffin bath, microwave, whirlpool, diathermy, infrared, and ultraviolet. The

proposed rules define these modalities as "physical reconditioning" and provide

reimbursement only to physical therapists.

18. The subacute phase is an intermediate phase, and lasts from four to

six weeks after the injury until about 180 days after the injury. As one might

expect, there is an overlapping of acute care and subacute care. Again, nurses

and other health care professionals would render care to a patient during this

phase as prescribed and managed by the primary care physician. Primary care

physical treatment modalities, as described above, may be prescribed by the

primary care physician during this phase.

19. The last phase which may occur is the chronic phase in which the

nature of the injury or its severity require continuing care or treatment of the

residual effects of the injury. For purposes of the department's proposed rule,

this phase is deemed to be 180 days after the initial injury on the basis that

most people will recover from their injury within 180 days if they are going to

recover. If they have not recovered within 180 days, most of them will continue

to suffer some chronic effect of the injury. Medical treatment for the chronic

or residual effects of injury is managed by the primary care physician.

DEPARTMENT'S RATIONALE

20. The department states that it limited reimbursement for physical

treatment modalities for "physical reconditioning" because the use of physical

therapists and occupational therapists in a Commission on Accreditation of

Rehabilitation Facilities (CARF) interdisciplinary team was consistent with the

Department's current standards, and education and training of those disciplines

were more closely aligned with the concept of physical reconditioning. The

department states that chiropractors do not offer the types of structured active

exercise and job simulation programs sought to be provided by the proposed rules

designed to promote "physical reconditioning."

21. The department also states that it based the proposed rules on its

legislative charge to contain the costs of providing health care to injured

workers. The challenged rules purportedly reduce the cost of this care by

limiting the reimbursement for 'remedial' physical treatment modalities to those

rendered by a physical and occupational therapists in the acute, subacute, and

chronic phases.

COMPLIANCE WITH SECTION 440.13, FLORIDA STATUTES

22. The department's intent was to create this new program, physical

reconditioning, and limit reimbursement for providing physical reconditioning

services to physical therapists. T-II, 196-197.

23. The proposed rules, while purportedly implementing Section 440.13,

Florida Statutes, were not the product of the peer review process for designated

new medically necessary procedures outlined in Section 440.13, supra. The

principal contributor to the department's rules, a physical therapist, stated he

worked in conjunction with a department study group which contained no

chiropractic or osteopathic physicians in promulgating the proposed rules.

24. The new service of "physical reconditioning" has been designated by

the proposed rules as a medically necessary service without the input of any of

the physicians who would prescribe such a service. See T-II,158-159.

25. The proposed rules include physical medicine services previously

rendered by all types of physicians within the definition of "physical

reconditioning," and deny the physicians reimbursement for those services.

These are services which physicians are obliged to provide to their patients

under their respective medical practice acts.

CARF-ACCREDITED INTERDISCIPLINARY TEAMS

26. The proposed rule provides in pertinent part:

Physical reconditioning shall not begin before

30 days have elapsed following the injury nor

shall it begin or continue after 180 days

following the date of injury, except on the

specific recommenda-tion of a CARF-accredited

interdisciplinary team's evaluation ....[.]

27. As used in the Proposed Rule 38F-7.803(2), CARF is either certifying

teams or facilities. CARF is the certifying authority for physical therapy

facilities operated by physical therapists. It does not certify

"interdisciplinary teams" according to its director. CARF will not list a

Chiropractic Physician as a provider. The proposed rule's requirement for CARF

certification effectively prevents reimbursement of treatment in chiropractic

physical therapy facilities.

28. The department buttresses its requirement for "CARF- accredited

interdisciplinary team evaluation" upon the department's requirement to publish

a directory of rehabilitative facilities pursuant to Section 440.49, Florida

Statutes. However, CARF is not mentioned in Section 440.49, supra.

29. Section 440.13,(1),(a), supra, defines health care facility as:

. . . any hospital licensed under chapter 395

and any health care institution licensed under

Chapter 400.

30. Section 440.13, supra, does not reference CARF and does not consider

health care facilities other than those referenced above.

31. The department's proposed rule attempts to create an new class of

health care facility (CARF certified) not contemplated in the statute.

Requiring CARF accreditation of facilities is contrary to the specific

provisions of Section 440.13,(1),(a), supra, the statute which the proposed

rules purportedly implement.

32. Another accrediting organization exists, the Joint Commission of

Accreditation of Healthcare Organizations (JCAHO), of which CARF was once a

part.

33. Chiropractic physicians do maintain facilities which provide a

complete range of rehabilitative services. Some of the facilities operated by

chiropractors employ physical therapists who the chiropractor supervises.

However, the chiropractor would be the provider for reimbursement purposes.

34. CARF is not subject to the regulation of the department, or any other

agency of state government.

COST CONTROL

35. It was not demonstrated that the proposed rules would decrease the

costs of care of injured workers.

36. It was demonstrated that, under the proposed rules, reimbursement

would be made to physical therapists for treatments within the area of practice

of other health care professionals for care which these health care

professionals currently render.

37. To the extent that two providers would now be charging for the

services formerly rendered by one provider, the costs of the services would more

that likely increase. The cost of administration would certainly increase.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has jurisdiction over the

parties pursuant to Section 120.54, Florida Statutes. Based upon the facts

presented, the Petitioner has standing to challenge Rules 38F-7.800 thru 7.807,

Florida Administrative Code, promulgated by the Department of Labor and

Employment Security.

39. As stated in the Findings, above, there is no relationship between the

proposed rules and Section 440.13(2)(d), Florida Statutes. Section

440.13(1)(d), Florida Statutes, provided as follows:

440.13 Medical services and supplies; penalty

for violations; limitations.

(1) As used in this section, the term:

(a) "Health care facility" means any hospital

licensed under chapter 395 and any health care

institution licensed under chapter 400.

(b) "Health care provider" means a physician

or any recognized practitioner who provides

skilled services pursuant to the prescription

of or under the supervision or direction of a

physician.

(c) "Medically necessary" means any service or

supply used to identify or treat an illness or

injury which is appropriate to the patient's

diagnosis, consistent with the location of

service and with the level of care provided.

The service should be widely accepted by the

practicing peer group, should be based on

scientific criteria, and should be determined

to be reasonably safe. The service may not be

of an experimental, investigative, or research

nature, except in those instances in which

prior approval of the division has been

obtained. The division shall promulgate rules

providing for such approval on a case-by-case

basis when the procedure is shown to have

significant benefits to the recovery and

well-being of the patient.

(d) "Peer review" means an evaluation by a

peer review committee, after utilization

review, of the appropriateness, quality, and

cost of health care and health services

provided a patient, based on medically

accepted standards.

(e) "Peer review committee" means a committee

composed of physicians licensed under the same

authority as the physician who rendered the

services being reviewed.

(f) "Physician" means a physician licensed

under chapter 458, an osteopath licensed under

chapter 459, a chiropractor licensed under

chapter 460, a podiatrist licensed under

chapter 461, an optometrist licensed under

chapter 463, or a dentist licensed under

chapter 466.

40. The general scheme of regulation set out in the section recognizes the

primacy of the physician as the primary care giver and case manager, and

provides a means for approving added medically necessary services. While the

department's efforts to increase the scope of treatment is meritorious, its

rules have no rationale relationship to the end being sought, and do not follow

the statutory process in the Section 440.13, supra, for adding services.

41. The department states that its purposes are (1) to provide additional

"reconditioning" services, and (2) to contain costs by mandating that these

services be performed by physical therapists. The Intervenor's witness

testified that there was no intent to deny reimbursement to physicians for

"physical reconditioning;" however, the department's witness and its rules state

that only a physical therapist would be reimbursed for physical treatment

modalities rendered during the acute, subacute and chronic phases of treatment.

42. Physical treatment modalities provided during the acute phase for

treatment of pain and circulation (reduction of swelling) will not be reimbursed

to providers except for physical therapists according to Proposed Rule 38F-

7.806,(2),e, quoted above in the Findings. The expert testimony was that

primary care includes treatment for reduction of swelling and control of pain.

43. Such care is both remedial and primary. As evidenced by the

conflicting testimony of the witnesses, confusion already exists regarding

whether these services are reimbursable to physicians. Clearly, an insurer

would have good cause to deny reimbursement for physical treatment modalities

included in "physical reconditioning" provided by a physician while rendering

acute care. Clearly, this unduly and improperly encroaches upon the various

medical practice acts; is far beyond the scope of Section 440.13, supra.

44. Further, the standards of practice dictate that the physician render

the service; therefore, the patient will have to pay for this service. This

type of care will always be rendered in acute cases and may be rendered in

subacute cases; however, "physical reconditioning" is not necessary in all

cases. The proposed rule works to the advantage of the physical therapist but

to the disadvantage of the patient who will bear the costs of these services

when the insurer disallows the physician's charges for these services. Such a

process cannot result in economical administration of the system.

45. As the First District Court of Appeal stated in Florida League of

Cities, Inc. v. Department of Environmental Regulation, Case No. 90-1733,

Opinion filed July 25, 1991 concerning a rule of the Department of Environmental

Regulation regarding minimum standards for disposal of domestic wastewater

residuals:

The challenger, among other things, is

required to show that the requirements of the

rule are inappropriate to the ends specified

in the legislative act, or that the

requirements proposed are not reasonably

related to the purpose of the enabling

legislation, or that the proposed rule is

arbitrary and capricious. [Court cites Agrico

Chemical Co. v. Department of Environmental

Regulation, 365 So.2d 759, and Marine

Fisheries Common v. Organized Fishermen of

Fla., 503 So.2d 935, 938 (Fla. 1st DCA).]

46. Proposed Rule 38F-7.806(2),e, supra, is not reasonably related to the

purposes of Section 440.13, supra, and "is an invalid exercise of delegated

legislative authority." See 120.54, Florida Statutes.

47. Regarding Proposed Rules 38F-7.802(1),(2), and (5), supra, the

department has the authority pursuant to Section 440.13(1)(d), supra, to define

new medical services for which it will provide reimbursement consistent with

other statutes regulating practice of the healing arts. Assuming, arguendo,

that the Department adhered to the mechanism for defining new treatments in

Section 440.13, supra, it may not define, as it has, a new service to limit

medical treatments already accepted and defined within the limits of practice of

other healing arts by the statutes regulating those arts. In these rules the

Department, contrary to its assertions, is limiting accepted existing medical

practice by several specialties in the guise of creating a new area of service.

48. There is a specific mechanism in the statute for initiating the

process of adding to medically necessary treatments. Section 440.13(1), supra,

provides:

(c) "Medically necessary" means any service or

supply used to identify or treat an illness or

injury which is appropriate to the patient's

diagnosis, consistent with the location of

service and with the level of care provided.

The service should be widely accepted by the

practicing peer group, should be based on

scientific criteria, and should be determined

to be reasonably safe. The service may not be

of an experimental, investigative, or research

nature . . .

(e) "Peer review committee" means a committee

composed of physicians licensed under the same

authority as the physician who rendered the

services being reviewed.

(f) "Physician" means a physician licensed

under chapter 458, an osteopath licensed under

chapter 459, a chiropractor licensed under

chapter 460, a podiatrist licensed under

chapter 461, an optometrist licensed under

chapter 463, or a dentist licensed under

chapter 466.

49. The statute does not provide a mechanism for physical therapists to

redefine "physical reconditioning" as medically necessary. A group of

physicians rendering "physical reconditioning" did not propose adding this

service. The record shows that the proposed rules were not the product of a

peer review committee envisioned in the statute.

50. The department has not exercised the authority granted to it by the

legislature in the manner which was prescribed with regard to the adoption of

the Proposed Rules 38F-7.802(1)and (5); 38F-7.803(2); and 38F-7.806(2),f.

ORDERED that the Proposed Rules 38F-7.802(1)and (5); 38F-7.803(2); and 38F-

7.806(2),f, are an invalid exercise of delegated legislative authority.

DONE AND ENTERED this 30th day of September, 1992, in Tallahassee, Leon

County, Florida.

___________________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September, 1992.

APPENDIX A

Both parties submitted proposed findings which were read and considered.

The Petitioners did not number the paragraphs of their Proposed Recommended

Order, and the references herein are to the paragraphs in their sequential order

from paragraph 1 on page one. Petitioner's findings of fact begin with

paragraph 10 on page 3. The following proposals were adopted as indicated, or

rejected for the reason stated:

Petitioner's Proposed Findings:

Para 10,11 Subsumed in FO Para 23.

Para 12-20 Subsumed in FO Para 6-10.

Para 21-23 Subsumed in FO Para 26,27.

Para 24 Subsumed in FO Para 34.

Para 25-27 Irrelevant.

Para 28-30 Subsumed in FO Para 27.

Para 31-33 Irrelevant.

Para 34 Argument & Conclusion of Law.

Para 33,35-39 Subsumed in FO Para 28-37.

Para 40 The proposed rules do not prohibit

providing the services. They do

limit reimbursement to physical

and occupational therapist.

Para 41-44 Subsumed in FO Para 6-10.

Para 45 Subsumed in FO Para 16-19.

Para 46,47 FO Para 7.

Para 48-53 Subsumed in FO Para 20-25, and see

comments to Para 40.

Para 54,55 Subsumed in FO Para 25.

Para 56-58 Subsumed in FO Para 7-10.

Para 59 Subsumed in FO Para 25.

Para 60 Irrelevant.

Para 61-83 Conclusions of Law.

Respondent's Proposed Findings:

Para 1 FO Para 1.

Para 2 FO Para 2.

Para 3 FO Para 4.

Para 4-7 FO Para 7.

Para 8 FO Para 1,12.

Para 9 FO Para 16.

Para 10,11 Subsumed in FO Para 8,9 and 17.

Para 12 FO Para 18.

Para 13 Subsumed in FO Para 19.

Para 14,15 Subsumed in FO Para 6.

Para 16 Irrelevant. This statute

addresses rehabilitation

facilities, not medically

necessary services.

Para 17 Subsumed in FO Para 20,21.

Para 18 Contrary to more credible

evidence.

Para 19,20 Evidence was presented that this

was the Department's vision;

however, it is both irrelevant and

contrary to more credible evidence.

Intervenor's Proposed Findings:

Para 1-4 Subsumed in FO Para 20,21.

Para 5 Subsumed in FO Para 23.

Para 6 Rejected as contrary to fact.

Para 7,8 Irrelevant because the issue is

reimbursement for provid ing the

services, not who may prescribe the

services.

Para 9 Irrelevant.

Para 10,11 Irrelevant. The Intervenor

attempts to buttress its contention that

the rule is valid because it the

physical therapist must provide physical

treatment modalities in conjunction with

physical reconditioning, and cannot be

reimbursed for the physical treatment

modalities. This avoids the issue of

the authority of the Department to

define by rule a new medically

necessary service and restrict who may

provide it to a group not even addressed

in Section 440.13, supra.

Para 12 Conclusion of Law.

Para 13,ue, but irrelevant because the issue

is not whether the Department can adopt

rules to limit costs.

Para 15 Subsumed in FO Para 16-19.

Para 16 FO Para 28.

Para 17 Irrelevant.

Para 18-20 Subsumed in FO Para 26-34.

Para 21,22 FO Para 20,21.

Para 23 FO Para 23,24.

Para 24 Irrelevant.

Para 25 Rejected. Contrary to best evidence.

Para 26-29 Irrelevant.

Para 30 FO Para 27,32.

Para 31,32 Irrelevant.

Para 33 FO Para 16-19.

Para 34 Subsumed in FO Para 6.

Para ue, but it does restrict their

compensation for physical treatment

modalities which they currently render

within the scope of their practices.

Para 36 Rejected. Contrary to best evidence.

Para 37-39 Irrelevant.

Para 40 Subsumed in FO Para 6.

Para 41 Irrelevant.

Para ue, but irrelevant.

Para ue, but irrelevant.

Para 49 FO Para 24.

Para 50 Contrary to FO Para 27.

Para 51-53 FO Para 19.

Para 54-55 Irrelevant.

Para 56,57 The proposed rule defines modalities

which are not "rehabilitative" as

"physical reconditioning, and limits

reimbursement for rendering these

services which are within the scope of

treatment of MD's, DC's, and DO's. A DC

is qualified to render the treatments

which the department has defined as

"physical reconditioning."

Para 58 While true, the issue is whether CARF

has accredited a facility operated by a

chiropractor as a provider.

Para 59 See Para 58, above. There was

credible evidence that CARF has

not certified a facility operated

by a chiropractor.

Para 60-62 Irrelevant. See Para 56,57, above.

Para 63 Irrelevant.

Para 64,ue, but not necessary finding.

Para 66,67 FO Para 33.

Para 68,69 Subsumed in FO Para 16-19.

Para 70,71 Irrelevant.

Para 72-75 Rehabilitation is not at issue.

Para 76 Irrelevant.

Para 77 FO Para 27.

Para 78 Irrelevant.

Para 79 See Para 58, above.

COPIES FURNISHED:

Stephen Marc Slepin, Esquire

1114 East Park Avenue

Tallahassee, FL 32301

Paul Watson Lambert, Esquire

Suite C

2851 Remington Green Circle

Tallahassee, FL 32308-3749

Cecelia Renn, General Counsel

Florida Department of Labor

and Employment Security

2012 Capital Circle, Suite 309

Tallahassee, FL 32399-2189

Robert S. Cohen, Esquire

Post Office Box 10095

Tallahassee, FL 32302

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

Room 1802, The Capitol

Tallahassee, Florida 32399-0250

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW

PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH

PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE

AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY,

ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL,

FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT

WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF

RENDITION OF THE ORDER TO BE REVIEWED.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF LABOR AND NOT FINAL UNTIL TIME EXPIRES TO

EMPLOYMENT SECURITY, DIVISION FILE MOTION FOR REHEARING AND

OF WORKERS' COMPENSATION, DISPOSITION THEREOF IF FILED.

Appellant, CASE NOS. 92-3643/92-3705

and Consolidated

DOAH CASE NO. 92-3319RP

FLORIDA PHYSICAL THERAPY

ASSOCIATION, INC.,

Intervenor/Appellant,

JACK BRADLEY, JERRY BALESTER,

THOMAS ENGLERT, DONALD H.

WOELTJEN, D.C., and FLORIDA

CHIROPRACTIC ASSOCIATION, INC.,

Appellees.

_______________________________/

Opinion filed May 3, 1994.

An appeal from an order of the Division of Administrative Hearings. Stephen F.

Dean, Hearing Officer.

Edward A. Dion, Assistant General Counsel and Michael G. Moore, Tallahassee, for

Appellant.

Robert S. Cohen of Haben, Culpepper, Dunbar & French, Tallahassee, for

Intervenor/Appellant.

Stephen Marc Slepin and Paul Watson Lambert, Tallahassee, for Appellees.

JOANOS, J.

This appeal is from a final order of the Division of Administrative

Hearings determining that certain proposed rules of the Department of Labor and

Employment Security, Division of Workers' Compensation (Division), are an

invalid exercise of delegated legislative authority. The issues are: (1)

whether the hearing officer's findings of fact are supported by competent

substantial evidence and the final order correctly interprets the proposed

rules, (2) whether proposed rules of the Division of Workers' Compensation must

be formulated or reviewed by a peer group, and (3) whether the hearing officer

improperly shifted the burden of production and persuasion from

petitioners/appellees to the Division of Workers' Compensation. We reverse.

The Division published the proposed rules at issue in the May 8, 1992,

edition of the Florida Administrative Weekly. The proposed rules held to be

invalid are 38F-7.802(1) and (5); 38F- 7.803(2); and 38F-7.806(2)(f). 1/ On

May 29, 1992, appellees Bradley, Balester, and Englert, workers' compensation

claimants receiving treatment from chiropractors; Donald H. Woeltjen, D.C., and

the Florida Chiropractic Association, Inc., filed a petition to challenge the

proposed rules, pursuant to section 120.54(4), Florida Statutes (1991) . The

petition alleged (1) the specific authority cited in the proposed rule does not

authorize creating the term "physical reconditioning" or any of the other newly

created terms proposed in the challenged rules; (2) the cited statutes do not

authorize limited performance of physical therapy to "physical reconditioning

providers," meaning physical therapists or occupational therapists, to the

exclusion of physicians licensed and authorized by statute to provide those

services; (3) Chapter 440 does not authorize "a CARF-accredited

interdisciplinary team's evaluation," or limitation to one "accrediting"

organization to the exclusion of other similar organizations that are equal to

or exceed the "accrediting standards" of CARF; 2/ (4) the proposed new rules

amend or modify section 440.13, and exceed the authority for rulemaking

delegated to the Division, "constituting an invalid exercise of delegated . . .

legislative authority under Subsection 120.54(4), Florida Statutes (1991). . .

." On June 9, 1992, the Florida Physical Therapy Association, Inc., filed a

petition to intervene. The intervenor's petition alleged, in part:

A significant goal of the Division is to help

contain the cost of providing health care to

injured workers. The proposed rules provide a

rational basis for containing those costs, are

a valid exercise of the legislative authority

delegated to the Division, are not arbitrary

or capricious, and are supported by law and fact.

At the final hearing, witnesses appearing on behalf of the Division

testified the proposed rules were promulgated to address a perceived need that

was not being met under the existing rules, i.e., that of the individual with

needs between remedial acute and sub-acute care and the extensive and expensive

interdisciplinary care provided for individuals with work-related disabling

conditions that have become chronic. By these rules, the Division hopes to

remedy the situation of the injured worker who becomes deconditioned during

convalescence, thereby averting re-injury upon return to work. Also, the

Division expects the physical reconditioning services to reduce the number of

persons who become chronically disabled as a result of an industrial injury.

Under the proposed physical reconditioning rule, if a primary physician refers

an injured worker for physical reconditioning, only a physical therapist or

occupational therapist will be authorized to provide physical reconditioning

services, and only the physical reconditioning provider will receive payment for

such services. In other words, an authorized primary physician will not receive

payment for physical medicine modalities he or she provides at the same time

such services are being provided by a referral physical reconditioning provider.

The Division contemplates that the proposed rules will contain costs by

virtue of reducing the risk of re-injury and chronic disabling conditions, and

by virtue of precluding double billing for services included within the ambit of

physical reconditioning. The Division's representative explained that under the

rule, a primary physician would be reimbursed for physical medicine modalities

provided within the first thirty days post-injury, i.e., during the acute and

sub-acute stages of recovery. If, at the end of the acute and sub-acute stages

of recovery, the primary physician determines the injured worker would benefit

from physical reconditioning, the primary care physician would recommend or

refer the injured worker for physical reconditioning. Only physical and

occupational therapists would be authorized to provide those services. The

proposed rules contemplate provision of physical reconditioning services, when

indicated, no earlier than thirty days after the injury, with cessation of

services 180 days post-injury, absent the existence of specific documented

criteria. The 180-day cut- off period was based on medical and industrial

studies which show that, in general, injury-related problems remaining six

months post-injury have become chronic, and thus are not amenable to physical

reconditioning.

Division personnel and consultants began conferring on the proposed rules

in 1988 or 1989. The term "physical reconditioning" was based on the program's

intent to meet the needs of the injured worker who was out of condition due to

the inactivity attendant upon convalescence. The Division's decision to limit

physical reconditioning providers to occupational and physical therapists was

based on the entry level training requirements of these particular disciplines.

Physical therapists and occupational therapists are held accountable for

physical restoration and functional restoration as the sole focus of their

practice. The proposed rules contemplate an active process whereby the injured

worker takes responsibility for changing his or her own clinical situation with

respect to functional or physical capabilities.

Since CARF is the accrediting association currently used by the state

agency, the Division specified CARF as the accrediting association for the

proposed rules. CARF is one of two national accrediting agencies accepted

throughout the medical field. The rule drafters concluded that CARF standards

were cost effective, because CARF is a non-profit, consumer advocacy

organization. The Division did not give consideration to the chiropractic

rehabilitative association as an accrediting association for the proposed rules,

because the association had not been formed when the proposed rules were

promulgated.

The Division relied upon sections 440.13(1)(d) and 440.591, Florida

Statutes (1991) as authority for promulgation of the proposed rules. In ruling

that proposed rules 38F-7.802(1) and (5), 38F-7.803(2), and 38F-7.806(2)(f) are

invalid, the hearing officer found the Division's adoption of the proposed rules

was not in the manner prescribed by section 440.13(1), Florida Statutes. We

disagree.

Resolution of the first issue requires consideration of the agency's

rulemaking authority, and the principles governing the exercise of that

authority. Legislative intent with respect to the workers' compensation law at

issue here is set forth in section 440.015, Florida Statutes, 3/ which states

in relevant part:

It is the intent of the Legislature that the

Workers' Compensation Law be interpreted so

as to assure the quick and efficient delivery

of disability and medical benefits to an

injured worker at a reasonable cost to the

employer. . . .

See also Ch. 91-1, Preamble, Laws of Fla. The challenged rules were designed to

implement delivery of the "medically necessary" services defined in section

440.13(1)(d), and the procedure outlined in section 440.13(2)(d). The agency's

rulemaking authority is derived generally from section 440.591, Florida

Statutes, which provides:

The division shall have the authority to

adopt rules to govern the performance of any

programs, duties, or responsibilities with

which it is charged under this chapter.

More specific rulemaking authority is provided in section 440.13(1)(d),

which states:

(d) "Medically necessary" means any

service or supply used to identify or treat

an illness or injury which is appropriate to

the patient's diagnosis, consistent with the

location of service and with the level of

care provided. The service should be widely

accepted by the practicing peer group, should

be based on scientific criteria, and should

be determined to be reasonably safe. The

service may not be of an experimental,

investigative, or research nature, except in

those instances in which prior approval of

the division has been obtained. The division

shall promulgate rules providing for such

approval on a case-by-case basis when the

procedure is shown to have significant

benefits to the recovery and well-being of

the patient.

It is an established principle that "[w]here the empowering provision of a

statute states simply that an agency `may make such rules and regulations as may

be necessary to carry out the provisions of this act,' the validity of the

regulations promulgated thereunder will be sustained as long as they are

reasonably related to the purposes of the enabling legislation, and are not

arbitrary or capricious." Adam Smith Enterprises v. Department of

Environmental Regulation, 553 So. 2d 1260, 1271 (Fla. 1st DCA 1989). See also

General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.

2d 1063, 1067 (Fla. 1984); General Motors Corp. v. Department of Highway Safety

& Motor Vehicles, 625 So. 2d 76, 78 (Fla. 1st DCA 1993).

In a rule challenge, "the burden is upon one who attacks a proposed rule to

show that the agency, if it adopts the rule, would exceed its authority; that

the requirements of the rule are not appropriate to the end specified in the

legislative act; that the requirements contained in the rule are not reasonably

related to the purpose of the enabling legislation or that the proposed rule or

the requirements thereof are arbitrary or capricious." Agrico Chemical Co. v.

Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978),

cert. denied, 376 So. 2d 74 (Fla. 1979). Another settled principle in the area

of administrative rulemaking is that--

agencies are to be accorded wide discretion

in the exercise of their rulemaking

authority, clearly conferred or fairly

implied and consistent with the agencies'

general statutory duties. . . . An agency's

construction of the statute it administers is

entitled to great weight and is not to be

overturned unless clearly erroneous . . . the

agency's interpretation of a statute need not

be the sole possible interpretation or even

the most desirable one; it need only be

within the range of possible interpretations.

Department of Professional Regulation, Board of Medical Examiners v. Durrani,

455 So. 2d 515, 517 (Fla. 1st DCA 1984). See also GMC v. Dept. of Hwy. Safety,

625 So. 2d at 77; Florida League of Cities v. Department of Insurance, 540 So.

2d 850, 857 (Fla. 1st DCA 1989).

In this case, the Division's representatives testified that the proposed

rules were designed to provide needed services to injured workers who fall

between the acute/sub-acute and chronic stages of injury, which needs are not

being addressed under the current system. Concomitantly, the proposed rules

were designed to be cost effective in the sense that the physical reconditioning

services contemplated by the rules will lessen the risk of re-injury to the

deconditioned worker, and will help to avert the chronic stage of injury which

requires expensive interdisciplinary care and treatment. In this regard, the

record reflects that if a worker's injury-related problems remain unresolved six

months after the injury, the disability becomes chronic in most cases.

Competent substantial evidence presented to the hearing officer indicates

that the type of services contemplated by proposed rules 38F-7.802(1) and (5)

are not being provided in the early intervention, structured manner contemplated

by the proposed rules, and that a need for such services exists. Similarly,

undisputed evidence established that, for the most part, any injury-related

physical or vocational problems which continue for six months post-injury become

chronic, thereby demonstrating the efficacy and reasonableness of proposed rule

38F-7.803(2), providing that physical reconditioning shall not begin before

thirty days have elapsed following the injury, or begin or continue after 180

days following the date of injury. In addition, evidence was presented that the

proposed rules' designation of CARF as an accrediting agency was consistent with

current state practice, and is in accordance with the Division's duty to control

costs. The thrust of the physical reconditioning rule is to avert chronic

injury-related conditions. In this regard, the 180-day termination point for

physical reconditioning is reasonably related to the provision of medically

necessary services, and is neither arbitrary nor capricious.

The evidence demonstrates that acute and sub-acute medical care is intense

treatment usually provided in the first thirty days following an injury. Since

a physical reconditioning program cannot begin until thirty days after the

injury and then only upon referral by a primary care physician, there will be

few instances when proposed rule 38F-7.806(1)(e) would preclude payment to the

primary care physician for physical medicine services. To the extent that the

rule proscribes payment to two health care providers for the same service, it is

reasonably related to the cost containment intent of section 440.015, and is

neither arbitrary nor capricious. By the same token, competent substantial

evidence established that residual problems remaining 180 days after the injury

usually become chronic, and, as such, are treated through an interdisciplinary

approach not subject to this rule. Therefore, the limitation period in proposed

rule 38F-7.806(2)(f) is reasonably related to the provision of medically

necessary services at reasonable cost to employers, and cannot be deemed

arbitrary or capricious.

The Division is authorized "to adopt rules to govern the performance of any

programs, duties, or responsibilities with which it is charged under this

chapter." S. 440.591, Fla. Stat. (1991). Among other things, Chapter 440

charges the Division with the duty to deliver "medically necessary" services to

injured employees. The evidence submitted by the Division demonstrates the

medical necessity for the services contemplated by the proposed rules, and the

designation of physical and occupational therapists as physical reconditioning

providers is reasonable, in light of the training and standards of these

particular disciplines. The rules contemplate delivery of an intermediate level

of care, specifically designed to restore strength and flexibility, so as to

avert the development of chronic disabling conditions or re-injury upon return

to work.

Our examination of the record discloses that certain findings of the

hearing officer are either without support in the record, or reflect a

misperception of the evidence submitted. For example, the hearing officer found

that the physical treatment modalities administered by the primary care

physician during the acute stage of injury are defined in the proposed rules as

"physical reconditioning," and that only physical therapists will be paid for

these services. A fair reading of rule 38F-7.806(1)(e) indicates it is only

when the listed modalities and procedures are provided by a primary care

physician concurrently with a physical reconditioning program that the services

"shall be authorized to be provided solely by the physical reconditioning

provider and shall be included in the reimbursement for the physical

reconditioning program." The record reflects that the primary authorized

physician will bill for acute or sub-acute care under the Florida Workers'

Compensation Provider Manual. Moreover, the physical reconditioning services

contemplated by the proposed rules would not be administered during the acute

stage, although there could be same overlap of sub-acute care and physical

reconditioning services. Once the primary care physician refers an injured

worker to a physical reconditioning program, he or she cannot bill separately

for physical treatment modalities being provided concurrently by a physical

reconditioning provider. In other words, the rule does not permit a primary

care physician to receive payment for physical reconditioning services provided

concurrently by a referral physical reconditioning provider. However, the

proposed rule does not preclude payment to the primary care physician pursuant

to the Florida Workers' Compensation Provider Manual.

There is nothing in the record to support the hearing officer's finding

that the challenged rules limit reimbursement for remedial physical treatment

modalities to those rendered by physical and occupational therapists in the

acute, sub-acute, and chronic phases of injury. It appears this finding was

based on the hearing officer's failure to consider the rule provisions regarding

concurrent payment. The testimony at the hearing indicated that the proposed

rules were designed to meet the needs of injured workers in the stage between

acute/sub-acute and chronic, without excessive cost to employers and carriers.

The Division proposes to do this by establishing programs that actively involve

injured workers in their own rehabilitation prior to the six-month period deemed

to be the point at which unresolved problems become chronic, due either to

residual physical disability, attendant psychological overlay, or both. Cost

containment is achieved by limiting reimbursement for physical reconditioning

services to the referral physical conditioning provider. The primary care

physician will continue to be reimbursed pursuant to the Manual.

The hearing officer also found that physicians are obliged to provide

physical medicine services under their respective medical practice acts, but

will be denied reimbursement for those services under the rule. The record

indicates that primary care physicians rarely, if at all, provide structured

exercise programs in the nature of the physical reconditioning contemplated by

the proposed rules. Some health care professionals testified that if the need

for physical reconditioning were indicated by a patient's condition, they would

feel a duty to provide a structured program of exercise. Under the Division's

construction of the proposed rules, if a chiropractor or other physician

provided physical reconditioning services in his or her role as primary care

physician, the services would be reimbursed under the Manual, so long as the

same services were not being provided in a concurrent physical reconditioning

program. If the primary care physician certifies that the injured worker should

receive physical reconditioning, the rule provides that payment for referral

physical reconditioning services will be made only to a physical therapist or

occupational therapist, because these disciplines focus upon, and are held

accountable for, physical results directly attributable to their efforts.

There is an absence of competent substantial evidence to support the

hearing officer's conclusions that the proposed rules limit accepted medical

practice by several specialties in the guise of creating a new area of service.

The hearing officer's conclusion in this regard may have been derived from the

assumptions expressed by several of appellees' witnesses. Such assumptions do

not constitute reliable evidence of the nature required to invalidate proposed

rules promulgated in accordance with an agency's rulemaking authority.

As the Division maintains, the final order contains numerous factual

findings which are without support in the record. In addition, the order

misconstrues the effect of the proposed rules. We conclude the Division's

interpretation of its proposed rules is a permissible construction that comports

with, and effectuates, clearly-stated legislative intent. See s. 440.015, Fla.

Stat. (1991).

The second issue concerns the hearing officer's seeming determination that

the Division's proposed rules must be formulated or reviewed by a peer review

committee. The hearing officer's construction of sections 440.13(1)(c), (e),

and (f), so as to require the Division to develop proposed rules through the

vehicle of a "peer review committee" imposes an erroneous gloss upon the

Division's rulemaking authority. Indeed, appellees concede error on this point,

but urge the hearing officer's references to review of the Division's rules by a

"peer review committee" should be treated as surplusage. We find no merit in

this contention. Rather, the hearing officer's misperception of the Division's

rulemaking authority is central to his finding that the proposed physical

reconditioning rules are an invalid exercise of delegated legislative authority.

The third issue concerns the hearing officer's cost control findings. 4/

As the Division maintains, these findings indicate the hearing officer

improperly shifted the burden to show cost containment to the Division.

Instead, as the party attacking the proposed rules, the burden was on appellees

to demonstrate that the rules would not reduce the long-term costs of care of

injured workers. See Agrico Chemical Co. v. DER, 365 So. 2d at 763.

We conclude the Division's authority to adopt proposed rules 38F-7.802(1)

and (5), 38F-7.803(2), and 38F-7.806(2)(f) is reasonably implied by the express

terms of sections 440.13(1)(d) and 440.591. Further, we conclude the proposed

rules are reasonably related to the enabling legislation, and are not arbitrary

or capricious.

Accordingly, the final order is reversed.

KAHN and WEBSTER, JJ., CONCUR.

ENDNOTES

1/ The following material is taken from the final order under review. The

order sets forth the text of the proposed rules under attack, with the specific

portion contested by appellees indicated by underscoring:

Proposed Rule 38F-7.802(1) provides:

"Physical reconditioning" means an intensive,

goal oriented, systematic process

specifically designed to restore an

individual's systemic neuromusculoskeletal

structure and function (strength, endurance,

flexibility and motor control).

Proposed Rule 38F-7.802(5) provides:

"Physical reconditioning provider" means an

occupational therapist, licensed pursuant to

Chapter 468, FS., or a physical therapist,

licensed pursuant to Chapter 486, FS.

Proposed Rule 38F-7.803(2) provides:

Physical reconditioning shall not begin

before 30 days have elapsed following the

injury nor shall it begin or continue after

180 days following the date of injury, except

on the specific recommendation of a CARF-

accredited interdisciplinary team's

evaluation which includes musculoskeletal,

behavioral, and vocational issues as well as

a functional capacity evaluation (FCE) as

provided in Rules 38F-8.021(7), F.A.C.

Proposed Rule 38F-7.806(1)(e), provides:

Acute and sub-acute remedial physical

medicine services far the purpose of pain

control, muscular relaxation, improved

circulation, and remobilization to promote

normal function, which provided concurrently

with a physical reconditioning program, shall

be authorized to be provided solely by the

physical reconditioning provider and shall

be included in the reimbursement for the

physical reconditioning program. Examples of

modalities and procedures typically rendered

in acute and sub-acute levels of care

included moist heat, ice, electrical

stimulation, massage, law intensity

stretching and range of motion exercises, and

training in proper body mechanics.

Proposed Rule 38F-7.806(1)(f), provides:

Acute or sub-acute remedial physical medicine

services as described in Rule 38F-

7.806(1)(e), F.A.C., shall not be reimbursed

to any physical medicine provider subsequent

to 180 days from the injured employee's date

of accident unless there is a medical

necessity, documented by objective

radiological findings or a neurological

deficit or a surgical intervention

necessitating the services.

The final order mistakenly numbers proposed rules 38F-7.806(1)(e) and 38F-

7.806(1)(f) as (2)(e) and (2)(f). The quoted text comes from proposed rules

38F-7.806(1)(e) and 38F-7.806(1)(f). Proposed rule 38F-7.806(2) contains only

subparagraphs (a) through (c). For the sake of clarity, the numbering errors

have been corrected in the quoted material.

2/ "CARF" is an acronym for the Commission on Accreditation of Rehabilitation

Facilities. The organization publishes an annual standards manual known as The

Standards Manual for Organizations Serving People With Disability.

3/ All references are to the 1991 edition of the Florida Statutes.

4/ The final order sets forth the following findings under the "Cost Control"

caption:

35. It was not demonstrated that the

proposed rules would decrease the costs of

care of injured workers.

36. It was demonstrated that, under the

proposed rules, reimbursement would be made

to physical therapists for treatments within

the area of practice of other health care

professionals for care which these health

care professionals currently render.

37. To the extent that two providers

would now be charging for the services

formerly rendered by one provider, the costs

of the services would more tha[n] likely

increase. The cost of administration would

certainly increase.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, Stephen F. Dean, Hearing Officer

Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

JACK BRADLEY, JERRY BALESTER,

THOMAS ENGLEBERT, DONALD H.

WOELTJEN, D.C. and FLORIDA

CHIROPRACTIC ASSOCIATION, INC.

Case No. 92-3643

vs. Your Case No. 92-3319RP

DEPARTMENT OF LABOR AND

EMPLOYMENT SECURITY, DIVISION

OF WORKERS' COMPENSATION and

FLORIDA PHYSICAL THERAPY

ASSOCIATION, INC.

The attached opinion was rendered on May 3, 1994,

YOU ARE HEREBY COMMANDED that further proceedings he had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the

Seal of said court at Tallahassee, the Capitol, on this 19th day of May, 1994.

_________________________________________

Clerk, District Court of Appeal of Florida,

First District

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, Stephen F. Dean, Hearing Officer

Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

JACK BRADLEY, JERRY BALESTER,

THOMAS ENGLEBERT, DONALD H.

WOELTJEN, D.C. and FLORIDA

CHIROPRACTIC ASSOCIATION, INC.

Case No. 92-3705

vs. Your Case No. 92-3319RP

DEPARTMENT OF LABOR AND

EMPLOYMENT SECURITY, DIVISION

OF WORKERS' COMPENSATION and

FLORIDA PHYSICAL THERAPY

ASSOCIATION, INC.

The attached opinion was rendered on May 3, 1994,

YOU ARE HEREBY COMMANDED that further proceedings he had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the

Seal of said court at Tallahassee, the Capitol, on this 19th day of May, 1994.

_________________________________________

Clerk, District Court of Appeal of Florida,

First District