06-004096 Crum Resources vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, January 31, 2007.

Summary: Respondent has adopted the position that Section 440.13(7)(b), Florida Statutes, is a self-executing statute of non-claim. Petitioner failed to comply with the requirements of the statute. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRUM RESOURCES, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4096

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent, )

)

and )

)

WEST FLORIDA REGIONAL MEDICAL )

CENTER, INC. d/b/a WEST FLORIDA )

HOSPITAL, )

)

Intervenor. )

)

RECOMMENDED ORDER OF DISMISSAL

Intervenor, West Florida Hospital, filed a Motion to

Relinquish Jurisdiction to Agency for Health Care Administration

for Entry of Final Ord er, on December 4, 2006, in which

Respondent, Agency for Health Care Administration (Agency)

joined.

Petitioner, Crum Resources, opposed the motion and filed a

response, to which Intervenor replied. A hearing was held on

the Motion on January 17, 2007. P etitioner's Motions to

Continue and to Abate were also considered. Respondent and

Intervenor requested and received the right to file a written

response to Petitioner's Motions, which was filed on January 18,

2007. The undersigned has considered the vari ous motions, the

responses thereto, and the oral arguments of the parties, and it

is

FOUND AND DETERMINED:

1. This case arose by the filing of a Petition for

reimbursement dispute resolution by Intervenor, West Florida

Regional Medical Center, Inc. d/b/a West Florida Hospital (West

Florida), on March 30, 2006, pursuant to Subsection

440.13(7)(a), Florida Statutes (2006). 1 The Agency dismissed the

petition without prejudice, and West Florida re - filed its

Petition with a detailed bill attached.

2. The Agen cy issued a Determination on the reimbursement

request on August 30, 2006. The Agency determined that the

Petition was properly served on the carrier (Crum Services,

Inc.), pursuant to Subsection 440.13(7)(a), Florida Statutes,

and that Petitioner's insur ance carrier did not respond to the

Petition within ten days following receipt of the Petition.

Therefore, the Agency determined that the carrier waived all

objections to the Petition pursuant to Subsection 440.13(7)(b),

Florida Statutes.

3. Petitioner f iled a Petition for Administrative Hearing

and an Amended Petition, seeking a formal hearing under Section

120.569 and Subsection 120.57(1), Florida Statutes. The case

was then referred to the Division of Administrative Hearings

(DOAH) on or about October 17, 2006.

4. During the motion hearing, Petitioner acknowledged that

the carrier did not submit a response to the Petition within the

ten - day period as required by Subsection 440.13(7)(b), Florida

Statutes.

5. Subsection 440.13(7), Florida Statutes, rea ds in

pertinent part as follows:

(7) Utilization and Reimbursement Disputes.

(a) Any health care provider, carrier, or

employer who elects to contest the

disallowance or adjustment of payment by a

carrier under subsection (6) must, within 30

days after r eceipt of notice of disallowance

or adjustment of payment, petition the

agency to resolve the dispute. The

petitioner must serve a copy of the petition

on the carrier and all affected parties by

certified mail. The petition must be

accompanied by all doc uments 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 agency

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 documents to the agency within 10

days constitutes a waiver of all objections

to the petition. (Emphasis supplie d)

6. The Agency cited, as authority orders issued in three

cases recently before the DOAH: Fairpay Solutions, Technology

Insurance Company, Inc., and Associated Industries Insurance

Services, Inc., v. AHCA , Case Nos. 06 - 1261 and 06 - 1274 (DOAH

Recommend ed Orders of Dismissal, August 7, 2006; Agency Final

Order rendered on both cases, September 14, 2006, which adopted

the Recommend Order in toto ), and Fairpay Solutions, Broadspire

Services, Inc., and Crum Services v. AHCA , DOAH Case No. 06 - 1463

(Order Clo sing File, July 18, 2006, Agency Final Order rendered

on August 14, 2006).

7. In each case, the provider filed and properly served a

Petition in accordance with Subsection 440.13(7)(a), Florida

Statutes, but no response was timely filed pursuant to

Subsec tion 440.13(7)(b), Florida Statutes.

8. Petitioner, in its reply, cited as authority Gopman v.

Department of Education , 908 So. 2d 1118 (Fla. 1st DCA 2005).

Gopman is factually distinguishable from the instant case in

that the Agency did not refuse Petit ioner's request for an

administrative hearing. This case was referred to the DOAH, at

which a hearing took place concerning whether the Agency's

preliminary finding, that Petitioner's claims are barred, was

correct. In Petitioner's Motion to Abate, Petit ioner cites

Mednet Connect, Inc., et al. v. Agency for Health Care

Administration , Case No. 04 - 2978 (DOAH, August 9, 2006; Final

Order rendered on January 4, 2007, which rejected the

Recommended Order in its entirety). This case is on point.

9. Fairplay Solutions, et al. v. Agency for Health Care

Administration , DOAH Case No. 06 - 1463, is presently on appeal to

the First District Court of Appeal, Case No. 1D06 - 4653, and

Mednet Connect, Inc., et al. v. Agency for Health Care

Administration , DOAH Case No. 04 - 2978, is also on appeal to the

First District, Case No. 1D07 - 378.

10. Although the undersigned Administrative Law Judge has

read each of the orders in the above - cited cases and finds merit

in each of them, it is not necessary, for the disposition of

this matter, to agree or disagree with a specific position. The

Agency has clearly taken the position that the failure of the

carrier to respond to the Petition within ten days is a

jurisdictional failure, in that the language of Subsection

440.13(7)(b), Flor ida Statutes, is clear that it operates as a

self - executing statute of non - claim. Further, the Final Orders

entered on DOAH Case Nos. 06 - 1261 and 06 - 1264 were not appealed,

and the time for filing an appeal has expired. Therefore, the

Agency's position o n this issue is the law of this case.

Because this issue is dispositive of Intervenor's Motion,

it is not necessary to address the other grounds asserted in

Intervenor's Motion, nor in Petitioner's Motions to Continue and

to Abate. 2

Accordingly, it is

REC OMMENDED:

1. That the Agency for Health Care Administration enter a

final order dismissing the Petition for failure to meet the

required timelines of Subsection 440.13(7)(b), Florida Statutes.

2. The final hearing in this cause scheduled for

February 13 and 14, 2007, is hereby canceled.

3. The file of the Division of Administrative Hearings in

the above - captioned matter is hereby closed.

DONE AND ENTERED this 31st day of January, 2007, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January, 2007.

ENDNOTES

1/ All references to Florida Statutes are to Florida Statutes

(2006), unless otherwise indicated.

2/ In light of this disposition, the Motion to Continue a nd

Motion to Abate are denied.

COPIES FURNISHED :

Joanna Daniels, Esquire

Agency for Health Care Administration

Workers' Compensation Medical Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Stephen A. Ecenia, Esquire

Rutledge, Ecenia, Purnell &

Hoffman, P.A.

215 South Monroe Street, Suite 420

Post Office Box 551

Tallahassee, Florida 32302 - 0551

Tamela L. Perdue, Esquire

Timothy L. Newhall, Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 1140

Tallahassee, Florida 32302 - 1140

Ric hard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Craig Smith, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Dr. Andrew C. Agwunobi, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

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.