09-006877 Dollar General 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

DOLLAR GENERAL, )

)

Petitioner, )

)

vs. )

) Case No. 09-6877

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF )

WORKERS’ COMPENSATION, )

)

Respondent, )

)

and )

)

HCA HEALTH SERVICES OF FLORIDA, )

INC., d/b/a OAK HILL HOSPITAL, )

)

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 Oak Hill Hospital for emergency

services rendered to patient J.M. for a work-related injury?

PRELIMINARY STATEMENT

On October 29, 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 Dollar General (Dollar) must

reimburse Oak Hill Hospital (Oak Hill) a total amount of

$4,192.50 for services rendered to injured employee J.M.

Petitioners Dollar 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. Oak Hill

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 Petitioner’s 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 Dollar

became the sole Petitioner. Oak Hill’s Unopposed Motion for

taking Official Recognition was granted.

The case proceeded to hearing as scheduled on March 24 and

25, 2010. Case numbers 09-6875 and 09-6876 were heard

simultaneously with this case, but the three cases were not

consolidated.

At hearing, Oak Hill presented the testimony of Allan W.

March, M.D. Oak Hill offered Exhibits numbered 15 through 25,

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

adopted Oak Hill’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, 5, 10, 11, 22, 23, and

25 through 28 were admitted in to evidence. Rulings were

reserved on Petitioner’s Exhibits 9 and 24. Upon consideration,

Petitioner’s Exhibits 9 and 24 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.

FINDINGS OF FACT

1. Petitioner, Dollar, 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, is charged with the review

and resolution of disputes regarding the payment of providers by

carriers for medical services rendered to injured workers. The

Department has exclusive jurisdiction to decide reimbursement

disputes. § 440.13(7) and (11)(c), Fla. Stat.

3. Intervenor, Oak Hill, is a health care provider within

the meaning of Subsections 440.13(1)(h) and (3)(f), Florida

Statutes. Oak Hill is an acute care hospital located in Spring

Hill, Hernando County, Florida.

4. On July 14, 2009, Oak Hill provided emergency services

to the patient J.M., a 47-year-old male, who was injured at his

place of work. J.M. was examined by Oak Hill’s emergency

department physician, was administered Hydromorphone, an opiate

pain medication and was given an injection of pain medication.

The emergency physician also ordered a computed Tomography (CT)

scan of the lower spine. The results of the CT was negative for

fractures.

5. Oak Hill's total charges for J.M.’s outpatient

emergency services were $5,590.00. Oak Hill submitted its claim

for reimbursement using the standard “uniform billing” form, UB-

04. The UB-04 sets out each service provided to J.M., the

individual charge for each service, and the total charge. The

individual services on the UB-04 submitted for patient J.M. are

listed as follows: pharmacy; CT scan of the lower spine; the

emergency department visit itself, and the pain medication.

6. Oak Hill’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 for Dollar a bill review of the bill submitted by Oak

Hill. 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, Oak Hill received a check

from Dollar in the amount of $827.73, along with an “Explanation

of Medical Benefits” review (EOBR), which is required to be sent

along with the bill payment.

8. The EOBR sets out the four individual components of Oak

Hill’s claim. For the first component (the pharmacy charge),

the EOBR indicates that “Reimbursement for the outpatient

service is based on 75% [sic] the hospital’s charges.” The CT

scan, with charges of $4,110.25, is paid at $247.00 with the

explanation, ”Payment in accordance with the Georgia Hospital

Inpatient Fee Schedule.” The emergency department visit

references CPT code 99284, the same as appears on the UB-04, but

is paid at $524.70 rather than at 75 percent of charges. That

adjustment is explained as follows: “Reductions are due to

charges exceeding amts reasonable for provider’s demographic

area. Please direct questions to Qmedtrix 800/833/1993.” The

last component of the claim, for the pain medication, is paid at

$48.90 with the same explanation.

9. The EOBR has one column entitled “Reason 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 93, which is explained as follows: “Paid:

No modification to the medical bill: Payment made pursuant to

contractual arrangement.”

10. As mentioned above, the EOBR indicates a “code” of

99284, the same code used on the UB-04 submitted by Oak Hill.

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 were adopted by hospitals for billing

emergency department visits. Emergency department services are

billed with CPT codes 99281 through 99285.

11. After receiving the payment and EOBR, Oak Hill timely

filed a Petition for Resolution of Reimbursement Dispute, with

attachments, to the Department. Oak Hill alleged in its

Petition that the correct reimbursement amount owed was

$4,192.50, leaving an underpayment of $3,364.77. However,

subsequently, Oak Hill received a second check from Dollar, and

an accompanying EOBR. The second check was for $2,835.69. The

EOBR indicated that the second payment was for the CT scan of

the lower spine. The sum of two payments for the CT scan is

$3,082.69, which amounts to 75 percent of Oak Hill’s charges for

the procedure. No further allowance was made for the other

three components of Oak Hill’s claim.

12. Qmedtrix, acting as Dollar’s representative, then

filed Dollar’s Response to Petition for Resolution of

Reimbursement Dispute and attachments with the Department.

13. Attached to the Response was a letter from

Mr. von Sydow dated October 19, 2009. The letter asserted that

the correct payment to the hospital (Oak Hill) 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 same community.”

14. 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 99282.

The letter concludes that the amount paid, $524.70, for the

emergency department visit exceeds the amount “usual and

customary” charges that Qmedtrix asserts, on behalf of Dollar,

is applicable to the claim.

15. On October 29, 2009, the Department issued its

Determination. The Determination states in pertinent part:

Rule 69L-7.602(5)(q), F.A.C., stipulates the

EOBR codes that must be utilized when

explaining to the provider the carrier’s

reasons for disallowance or adjustment. The

carrier appended EOBR codes 92 or 93 to the

billed items. For the line items appended

with EOBR code 92, the reimbursement fails

to equal the maximum reimbursement

allowances (MRAs) provided in the 2006 HRM .

Furthermore, the carrier failed to

substantiate the existence of a

reimbursement contract between Oak Hill and

the carrier. Therefore, the reimbursement

adjustments to line items appended with EOBR

codes, 92 and 93, are unsubstantiated.

Moreover, the carrier appended to the billed

line items three unique codes which

indicate: “Reductions are due to charges

exceeding amts reasonable for provider’s

demographic area”[sic], “Reimbursement for

this outpatient service is based on 75% of

the hospital’s charges”, and “Payment in

accordance with the Georgia hospital

inpatient payment fee schedule.” These

explanations fail to afford the petitioner

any understanding for the reimbursement

adjustments documented on the EOBR.

Furthermore, the Florida Statutes and Rules

do not support the carrier’s reasoning for

the reimbursement adjustments documented on

the EOBR. Therefore, the carrier failed to

substantiate its adjustment to reimbursement

on the EOBR as required by Rule 69L-7.602,

F.A.C.

Lastly, the 2006 HRM , Section 12.A., vests

specific authority in the carrier to review

the hospital’s Charge Master to verify

charges on the itemized statement and to

disallow reimbursement for specifically

itemized services that do not appear to be

medically necessary. None of the submitted

documentation indicates the carrier elected

to exercise this option. Whereas, the

carrier did not allege that any service was

deemed not “medically necessary,” or that

the charges on the billing form failed to

match the petitioner’s Charge Master, the

OMS finds the charges billed by the hospital

are the hospital’s usual and customary

charges.

The 2006 HRM provides for reimbursement of

emergency room services at seventy-five

percent (75%) of the hospital’s usual and

customary charges. Whereas, the carrier

failed to substantiate is[sic] adjustments

to reimbursement on the EOBR, the OMS

determines correct and total reimbursement

equals $4,192.50 ($5590.00x.75).

16. The determination letter also informed Dollar of its

right to an administrative hearing. Dollar timely filed a

Request for Administrative Hearing, which gave rise to this

proceeding.

CODING FOR J.M.’S EMERGENCY SERVICES

17. As mentioned above, Oak Hill reported the emergency

department visit using CPT Code 99284. No one from the hospital

testified, but Oak Hill’s expert, Allan W. March, M.D., reviewed

Oak Hill’s hospital record for J.M.

18. 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 Intervenor and Respondent.

19. Dr. March described J.M. from the hospital record as

follows: “This patient is a 47-year-old man who immediately,

just prior to presentation, fell off a ladder 7 feet above the

ground and injured his back and presented with pain in the right

lower back, with a swollen and tender area that was visible and

palpable to the examining physician, with pain on movement of

his lower back.” Dr. March reviewed Oak Hill’s hospital record

for J.M. to analyze whether Oak Hill appropriately used CPT code

99284.

20. Oak Hill’s coding for the emergency department visit

is based on the American College of Emergency Physicians’ “ED

medical record for J.M.’s care includes an “Emergency Department

Charge Sheet” corresponding precisely to the ACEP Guidelines,

and in which the abbreviation “CT” is circled in the section for

CPT code 99284. By using the ACEP Guidelines, Oak Hill used a

nationally recognized methodology in determining the level of

service to which the hospital should bill.

21. 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

J.M. was given a CT scan. In Dr. March’s opinion, Oak Hill

correctly assigned a 99284 code to J.M.’s emergency department

visit, and that assignment is substantiated by the medical

record under the ACEP Guidelines.

22. 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 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.

23. The claim submitted by Oak Hill was sent to Qmedtrix

for a bill review. Its data elements were first entered into

The software placed Oak Hill’s claim on hold for manual review.

The claim was then manually reviewed by William von Sydow,

Director of National Dispute Resolution for Qmedtrix.

24. 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 Oak Hill should have

used code 99282 instead of 99284, although payment was based on

code 99283 at 75 percent of what he calculated to be the average

charge in the community for 99283.

25. 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 Oak Hill’s claim to be

inconsistent with CPT code 99284. In his view, the ICD-9 codes

correspond more closely with CPT code 99282. Moreover,

Mr. von Sydow referenced a study by 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 -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.

26. 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 their medical director

since 2005. Dr. Perlman testified on behalf of Dollar.

27. Dr. Perlman is also 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.

28. In Dr. Perlman’s opinion, J.M.’s injuries supported

assignment of CPT code 99283 rather than 99284. The fact that

J.M. underwent a CT scan 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.

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

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

30. 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 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. Oak Hill’s use of this methodology is supported by

the weight of the evidence as appropriate. J.M.’s hospital

record amply documents the interventions required for the

assignment of CPT code 99284 under the ACEP guidelines.

Therefore, coding J.M.’s emergency department visit as 99284 by

Oak Hill was appropriate.

31. There is no dispute that Oak Hill’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

32. 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 (2009).

33. This proceeding, like all other proceedings conducted

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

See § 120.57(1)(k), Fla. Stat.

34. 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 778, (Fla. 1st DCA 778 at 788; Balino v.

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

(Fla. 1st DCA 1977). It was Oak Hill 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), (c). Accordingly, Oak Hill, as the health

care provider who is asserting entitlement to reimbursement for

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

that the charges for the services provided do not constitute

over-utilization.

35. The standard of proof is a preponderance of the

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

36. This case involves a reimbursement dispute under

Section 440.13(7), Florida Statutes (2009). 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 agency

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. The rules may

include provisions for consolidating

petitions filed by a petitioner and

expanding the timetable for rendering a

determination upon a consolidated petition.

* * *

(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)

37. 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.

38. 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/]

39. At issue in this proceeding is whether reimbursement

to Oak Hill 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 , 958 So. 2d 1127 (Fla. 1st DCA 2007),

Petitioner argues that reimbursement should be based upon the

usual and customary charge in the community. The Petition for

Administrative Hearing argues that Florida Administrative Code

Rule 69L-7.501, and its interpretation by the Department, is

contrary to the provisions of Section 440.13(12), Florida

Statutes.

40. 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 Oak Hill’s Unopposed Motion for Taking

Official Recognition.)

41. 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.).

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 Oak Hill consistent with the Determination

Letter dated October 29, 2009, and Section 440.13(7), 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 Exhibit 9, Respondent/Intervenors’ relevancy

objections are sustained. The witness testified that he did not

rely on these documents to form his opinion. Regarding Exhibit

24, Respondent/Intervenor argue that Section 90.956 was not

complied with in that Petitioner did not comply with the

requirement of 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 Dollar 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 Dollar. 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

Cynthia Jakeman, 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.