15-004303 Wal-Mart, Inc., And Sedgwick Cms vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Friday, February 19, 2016.

Summary: Carrier failed to establish standing to seek administrative remedy for payments to health care provider alleged to constitute overutilization.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAL - MART, INC., AND SEDGWICK

CMS,

Petitioner s ,

vs. Case No. 15 - 4303

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS ͸

COMPENSATION ,

Respondent ,

and

FLORIDA INSTITUTE FOR

NEUROLOGIC REHABILITIATION AND

FRUIT VILLE HOLDINGS Α OPPIDAN,

INC .

Intervenors.

/

RECOMMENDED ORDER

Pursuant to notice , a f ormal hearing was held in this case

on October 6, 2015 , before Lawrence P. Stevenson, a duly -

designated Ad ministrative Law Judge, in Tallahassee , Florida .

APPEARANCES

For Petitioner s : James N. McConnaughhay , Esquire

David A. McCranie , Esquire

McConnaughhay, Duffy, Coonrod, Pope,

Weaver , Stern & Thomas, P.A.

1709 Hermitage Boulevard , Suite 200

Tallahassee , Florida 3 3208

For Respondent: Cynthia L. Jakeman , Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee , Florida 3 23 99 - 4229

For Intervenors : Daniel H ays Thompson , Esquire

Berger Singerman , LLP

1 25 South Gadsden Street, Suite 300

Tallahassee, Florida 3230 1 1/

STATEMENT OF THE ISSUES

The following are the issues presented :

1. Whether the Division of Administrative Hearings

(ÐDOAHÑ) has jurisdiction to determine the claim of Petitioners

Wal - Mart, Inc. (ÐWal - MartÑ) and Sedgwick CMS (ÐSedgwickÑ) to

relief under section 440 .13(8) and (11), Florida Statutes;

2. If DOAH has jurisdiction, whether Petitioners have

standing to raise the issue of medical overutilization;

3. If DOAH has jurisdiction and the Petitioners have

standing, whether Petitioners are estopped from seeking

reimbursement of any monies paid to Intervenors Florida

Institute for Neurologic Rehabilitation ( Ð FINR Ñ ) and Fruitville

Holdings - Oppidan, Inc. ( Ð Oppidan Ñ );

4. If DOAH has jurisdiction and Petitioners have standing

and are not estopped, whether Interveno rs engaged in

overutilization of medical care in their care and treatment of

the injured worker, D.F.;

5. Whether Respondent , Department of Financial Services,

Division of Workers Ó Compensation (the Ð Department) , has the

authority to order Intervenors to reimburse Petitioners for

payments related to overutilization by Intervenors in the

medical care of D.F.; and

6. If the Department has such authority, how much money

should Intervenors be ordered to reimburse Petitioners.

PRELIMINARY STATEMENT

On April 13, 2015, Petitioners filed with the Department a

Petition for Formal Administrative Hearing (the ÐPetitionÑ)

contesting the DepartmentÓs March 23, 2015, dismissal of

PetitionersÓ ÐPetition for Resolution of Reimbursement Dispute

and for Utilization Review In Accordance With Section 440.13,

Florida StatutesÑ (the ÐReimbursement PetitionÑ), which

Petitioners originally filed with the Department on January 26,

2011.

O n July 28 , 2015, the Department forwarded the Petition to

DOAH for the assignment of an adm inistrative law judge and the

conduct of a formal hearing. The final hearing was scheduled

for October 6, 2015, on which date it was convened and

completed .

On August 21, 2015, FINR and Oppidan filed a motion to

i ntervene, which was granted by O rder dated August 26, 2015.

At the hearing , Petitioners presented the testimony of

Susan Smith, a claims adjuster for Sedgwick, and of Edward Louis

Stern, an attorney for Petitioners in the workersÓ compensation

matter involving injured worker , D.F. PetitionersÓ E xhibits A

through T were admitted into evidence.

The Department presented the testimony of Pamela Macon,

bureau chief of the Bureau of Monitoring and Audit of the

Division of WorkersÓ Compensation, and of Eric Lloyd, formerly

program administrator of the O ffice of Medical Services in the

aforementioned Bureau of Monitoring and Audit. The DepartmentÓs

Exhibits 1 through 4 were admitted into evidence.

Intervenors presented the testimony of Elizabeth Rock,

director of accounts receivable for FI NR. Intervenor sÓ

Exhibits 1, 8 through 12, and 16 through 24 were admitted into

evidence.

The one - volume Transcript of the final hearing was filed at

DOAH on October 28 , 2015 . Two ext ensions of the time for filing

proposed r ecom mended o rders were granted. In accordanc e with

the modified schedule, all parties timely filed their Proposed

Recommended Order s on January 5, 2016 .

Unless otherwise stated, all stat utory references are to

the 201 0 edition of the Florida Statutes.

FINDINGS OF FACT

Based on the oral and document ary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following F indings of F act are made:

1. The Department is the state agency responsib le for

administering the Worker s Ó Compens ation Law , chapter 440,

Florida Statutes . Section 440.13 governs the DepartmentÓs

responsibilities and procedures for overseeing the provision by

employers to their employees of Ðsuch medically necessary

remedial treatment, care, and attendance for such period as the

nature of the injury or the process of recovery may require,

which is in accordance with established practice parameters and

protocols of treatment as provided for in this chapter . . . . Ñ

§ 440.13(2)(a), Fla. Stat.

2. Petitioner Wal - Mart is an ÐemployerÑ as that term is

define d in section 440.02(16). Petitioner Sedgwick acts as a

workers' compensation servicing agent or Ðthird party

administratorÑ (ÐTPAÑ) for Wal - Mart and is a workersÓ

compensation ÐcarrierÑ as defined in section 440.13 (1) (c).

3. D.F. is an ÐemployeeÑ as that term is defined in

section 440.02(15).

4. In 2003, during the course of his employment with Wal -

Mart in Sarasota, D.F. fell approximately six feet from a ladder

to the ground, landing on his left side and striking his head.

D.F. was diagnosed with a tra umatic brain injury.

5. Through Sedgwick, Wal - Mart accepted the compensability

of D.F.'s injuries under the l aw and began furnishing Ð medically

necessary treatment, care and attendance Ñ to D.F. as required by

section 440.13(2).

6. In the immediate afterm ath of the accident, D.F. was

treated at Sarasota Memorial Hospital, where he was diagnosed

with cephalgia (headache), left flank contusion, and cervical

strain. He was later seen at First Care in Sarasota with

complaints of headache, and by a Dr. Barnea (no first name in

the record) with complaints of headaches, dizziness, backaches,

trouble with memory, and an inability to taste food.

7. D.F. was also seen by Dr. Hal Pineless, a neurologist

at the Neurocare Institute of Central Florida, who diagnosed

D. F. with a cerebral concussion with post - concussive syndrome,

post - concussive headaches, depression, and anosmia (loss of the

sense of smell).

8. In January 2005, D.F. took a handful of pills in what

was at least a suicidal gesture , if not a serious attemp t to

kill himself . He was admitted to the Halifax Medical Center,

and a Baker Act 2/ proceeding was initiated against him. Although

D.F. was found not to meet the criteria for involuntary

hospitalization at that point, three months later he was

referred b y James Hutchens, his attorney, to Dr. Howard Goldman,

a psychiatrist, because of the attorney's fear that D.F. would

again attempt to harm himself.

9. In February 2007, D.F. was evaluated at FINR , an

inpatient neurologic rehabilitation facility in Wauch ula. FINR

recommende d in patient treatment for D.F. at their facility for

an initial period of 30 to 60 days. The cost of the treatment

was set at $950 a day. Su san Smith was the Sedgwick claims

adjuster assigned to D.F.Ós claim. Relying on the expertis e of

the physicians at FINR, Ms. Smith agreed to the admission and

the price.

10. Ms. Smith testified that when she took over the case,

there were five physicians treating D.F., including a

neurologist, a psychotherapist, a psychiatrist, and a

physiatrist . The physicians were all requesting different

courses of treatment and were prescribing medications that were

in some instances contraindicated with each other. The

physicians were not communicating with each other. D.F.Ós case

was Ðjust a mess.Ñ Ms. Smith stated that FINR seemed to present

an opportunity for D.F. to receive all of his treatments in one

place, with one physician in charge, in a coordinated fashion.

11. D.F. was admitted to FINR in March 2007. Dr. Jorge J.

Villalba, the medical di rector of FINR, diagnosed D.F.'s medical

conditions as post - traumatic headaches, anxiety, and depression.

12. FINR provided monthly reports of D.F.'s progress to

Sedgwick. D.F. Ó s treatment was administered by a team of

physicians at FINR and consisted of medical monitoring,

occupational therapy, physical therapy, and speech therapy.

D.F. was provided vocational rehabilitation in FINR Ó s computer

lab and in the wood shop, where he worked on sanding, staining,

and building wood products.

13. In August 200 7, D.F. was transferred to Oppidan, an

assisted living facility , as a Ðstep downÑ in treatment from the

inpatient FINR facility. O ppidan is affiliated with FINR, which

does all of the billing for both entities . Again relying on the

expertise of the physi cians, Ms. Smith agreed to the transfer

and to the $850 per day cost of care at Oppidan.

14. Oppidan provided monthly reports to Sedgwick similar

to those provided by FINR. These reports, later characterized

as "boilerplate" by the DepartmentÓs expert me dical advisor,

Dr. Matthew Imfeld, showed that D.F. was receiving treatment

similar to that which he had received at FINR, i.e., medical

monitoring, occupational therapy, physical therapy, speech

therapy, and vocational therapy.

15. D.F. remained at Oppid an from August 2007 until August

2011, more than four years after his initial admission to FINR.

Ms. Smith testified that she was in constant contact with the

treatment facility and persistently inquired as to when D.F.

would be ready for release from the facility. Ms. Smith noted a

pattern in which D.F. would seem to improve to the point of

discharge and then suffer some form of relapse or new symptom

that would preclude his discharge . Increased symptoms included

complaints of personality changes, anxie ty, syncopal episodes

accompanied by frequent falls, medication adjustments, emotional

withdrawal, suspected Parkinson's syndrome , ringworm, shoulder

problems, ringing in the ears, and a nhedonia. 3/

16. Petitioners worked with OppidanÓs medical staff to

de termine conditions for D.F .Ós discharge from Oppidan. On

January 9, 2009, PetitionerÓs then - counsel, Brian Bartley,

discussed the situation with Dr. Villalba and Dr. Jeffrey

Walden, D.F.Ós neuropsychologist. They agreed that D.F.Ós needs

could potentiall y be met within an outpatient day program. At

Mr. BartleyÓs suggestion, Dr. Villalba and Dr. Walden

investigated the Adult Daycare program at Manatee Glens, a

behavioral health hospital with an outpatient component.

17. Though they rejected Manatee Gle ns as an appropriate

placement, Drs. Villalba and Walden sent Mr. Bartley a letter ,

dated January 15, 2009, that outlined the components they felt

necessary for an acceptable outpatient program:

[D.F.] requires comprehensive case

management services to ove rsee his program,

assist with making and following - up on

appointments, assist in managing his

benefits, and coordinate his care.

[D.F.] will require oversight of his

medications. We feel that a home health

nurse or, alternately, a nurse on site at a

pote ntial discharge site, would be necessary

to provide for this need by pac king his

medication box with him , assessing him for

possible side effects, overseeing a schedule

of routine labs, etc. His wife can assist

with prompting him at his medication times

a s necessary during non - program hours, but

we do not recommend that she have primary

responsibility for managing his medications

or medical status.

[D.F.] will require reliable transportation

to and from his program and ancillary

appointments. His wife wi ll not be able to

be his sole source of transportation.

First, the only licensed and tagged vehicle

they own is an old van that has had multiple

reliability issues. Second, his wife has

her own ongoing medical concerns that may

interfere with her capacit y to provide

reliable transportation even with a working

vehicle.

[D.F.] requires activities that challenge

him to be in the community and addressing

his anxiety and panic symptoms. As such, a

club - house model day program will be

inadequate. He requires a vocational

program where he is in a workplace, managing

interpersonal relationships, and working on

specified tasks. He has thus far been able

to manage such assignments only with the

assistance of a one - to - one job coach on the

site with him and workin g at his side. As

such, job coaching services will be required

for all vocational hours.

[D.F.] requires community recreational

activities to further challenge his capacity

to cope and master anxiety - producing

situations with less structure than a

workpl ace. His pres ent program addressed

this need through one - to - one lunch outings,

fishing trips, etc. During these

activities, he is encouraged to use the

coping strategies developed in his

psychotherapy sessions to manage and

persevere despite his debilita ting anxiety.

[D.F.] requires a quiet place to which he

can temporarily retreat and regroup between

community - based activities. He can become

overwhelmed in busy and chaotic environments

such as a room with loud music or television

playing, a busy game r oom, or an activity

center. He has coping strategies he

utilizes when he must be in such

environments, but the availability of a

place where he can escape such over -

stimulation is required to facilitate his

participation in his activities.

[D.F.] require s continued participation in

weekly cognitive - behavioral psychotherapy.

He also requires regular contact with a

neurologist and a neuropsychiatrist. His

current program includes massage therapy as

well to address his shoulder and to assist

with relaxatio n skills. He also receives

assistance with the management of his

personal budget, including development of

[a] computer - based budgeting program,

planning of future expenses and anticipated

income, and development of financial

priorities. He will require continued

assistance in this area as well.

We hope this adequately describes the

services we feel will be required to address

[D.F.Ós] needs in an outpatient environment.

Please feel free to contact us with any

comments or questions you may have. We wil l

gladly review any proposed discharge site

and offer our thoughts regarding the

acceptability of such a site to meet his

needs.

18. The record indicates that Mr. Bartley suggested at

least one more potential discharge site to the medical staff at

O ppidan. In a letter dated March 27, 2009, Drs. Villalba and

Wald en stopped short of rejecting this option outright but did

set forth a list of concerns and requests for further

information regarding the details of the proposed treatment.

The record does not indicate whether Mr. Bartley followed up on

these concerns and requests, or whether Petitioners proposed

another outpatient program for D.F.

1 9 . By the time of D.F.Ós discharge , FINR and OppidanÓs

billed charges for his treatment totaled $1,451,301.2 7. Wal -

Mart, through Sedgwick, paid these bills in full without

disallowance, adjustment, or reduction. At all times relevant,

Ms. Smith relied upon the expertise of the medical staff at FINR

and OppidanÓs facilities confirming that the treatment being

p r ovided was medically necessary. Ms. Smith also understood

that D.F. had been "Baker Acted" and feared that he might harm

himself if Oppidan discharged him upon her disallowance of the

charges for his treatment.

20 . Though they continued paying the charg es during D.F.Ós

stay at Oppidan, Petitioners noted the mounting costs and

apparently endless course of treatment. Petitioners referred

D.F. to Glenn J. Larrabee, Ph.D., a diplomate in clinical

neuropsychology, who examined D.F. on September 28 through 30

and October 5, 2009 , and reviewed all of his available medical

records.

21 . Dr. Larrabee produced a 41 - page report, dated

November 9, 2009. The report concluded that D.F.Ós medical

records Ðsuggest that at worst, he suffered a mild traumatic

brain inj ury of an uncomplicated nature, given normal CT Scan

the day of injury and multiple subsequent normal CT Scans of the

brain.Ñ Dr. Larrabee noted that recovery from such an

uncomplicated injury is usually three months at most and that

D.F. had no cognitive or emotional complaints in follow - up

visits shortly after the injury. It was only a few weeks later

that he displayed the symptoms of anosmia . Dr. LarrabeeÓs

examination of D.F. showed Ðdeliberate feigning of odor

identification in the left nostril, wit h significantly worse -

than - chance performance, strongly supporting the feigning of

anosmia.Ñ

22 . Dr. Larrabee further noted evidence of normal

neuropsychological test performance in D.F.Ós initial

neuropsychological evaluation with a Dr. Frank in early 20 04, in

a second neurological evaluation conducted by a Dr. Bosco in

2007, and in Dr. LarrabeeÓs own current examination. These

results Ðstrongly contradict the presence of any persistent

deficit from his original mild traumatic brain injury.Ñ

23 . In ea ch of these tests, Dr. Larrabee also noted

Ðevidence of invalid test performance with failure of symptom

validity tests and measures of response bias,Ñ a further

indication that D.F. was deliberately f eigning responses.

Dr. Larrabee wrote that Ð[o]ther he alth care professionals have

noted a motivational basis or non - neurologic basis to

symptomatic complaint.Ñ Dr. Salter in 2005 included Ðfactitious

disorderÑ as one of his diagnoses, and Dr. Tatum noted that D.F.

displayed seizures without any indication o f actual epilepsy.

24 . Dr. Larrabee concluded that, while there was

Ðcompelling evidence of malingeringÑ on the neuropsychological

examinations, other professionals have noted Ðsignificant

personality disorder featuresÑ that could lead one to be

dependent on the inpatien t hospitalization setting.

Dr. Larrabee found that there could be Ða mix of intentional

(i.e., malingering) and unintentional (psychiatric) factorsÑ in

the cas e of D.F. He recommended a one - month stay in a

psychiatric facility for evaluat ion and treatment. Without such

hospitalization, it could not be determined whether D.F. had a

legitimate psychiatric disorder or whether such disorder was a

consequence of his workplace injury.

25 . At about the s ame time as the referral to

Dr. Larrabee, Petitioners began to explore legal channels to

procure D.F.Ós discharge from Oppidan. Petitioners sent t he

case file to an attorney, E dward Louis Stern , who testified at

the final hearing. Mr. Stern testified that he met with D.F.'s

attorney for the pur pose of obtaining his cooperation in having

D.F. discharged . Mr. Stern provided D.F.'s attorney with a copy

of Dr. LarrabeeÓs report .

26 . Mr. Stern stated that D.F.'s attorney agreed in

principle to the discharge of D.F. but wanted to identify the

para meters that would be allowed by FINR/ Oppidan for his safe

release. To this end, a meeting was set up for June 3, 2010,

that included the program director at FINR, the treating

neuropsychologist, a vocational consultant, D.F., D.F.'s spouse,

and D.F.' s att orney . Mr. Stern reported that no one at the

meeting was willing to definitively identify the parameters of

D.F.'s discharge.

27 . Mr. Stern left the meeting with the definite

impression that D.F.Ós attorney would not agree to D.F.Ós

discharge. He also believed that no one at the facility would

be willing to identify parameters for discharge. Therefore,

Mr. Stern and his clients decided to initiate formal

overutilization proceedings based on peer review, pursuant to

section 440.13(6).

28 . Mr. Stern n oted that p eer review requires two or more

"physicians" to make an evaluation of the care in question.

Petitioners had in hand only the opinion of Dr. Larrabee , a

neuropsychologist whose non - physician opinion w ould not be

admissible before a Judge of Comp ensation Claims . After some

negotiation, D.F.Ós attorney agreed to an examination by a

psychiatrist.

29 . On September 3, 2010, Dr. R.J. Mignone, a board -

certified psychiatrist practicing in Sarasota, evaluated D.F. at

Petitioners' request. Dr. MignoneÓs 35 - page report included a

detailed narrative of D.F.Ós treatment history, Dr. MignoneÓs

examination, and his impressions and recommendations. In brief

answers to a series of questions propounded by Petitioners,

Dr. Mignone concluded that D.F.'s industria l accident was not

"the major contributing cause" for the psychiatric care he had

been receiving at FINR/Oppidan. Dr. Mignone found no DSM - IV

Axis I psychiatric injury to D.F. and concluded that D.F.Ós

treatment at FINR/Oppidan was actually "psychiatrical ly

contraindicated . "

30 . Dr. Mignone concluded that it would be appropriate to

discharge D.F. from Oppidan with the understanding that some

regression should be expected once his ÐAxis II characteropathyÑ

ceased to be reinforced by the inpatient setting . Dr. Mignone

believed that D.F.'s medical professionals had been guilty of

"walking on eggshells" in their treatment of him and that D.F.'s

"acting out" behavior had been a major factor in FINR/Oppidan's

program design. Dr. Mignone concluded that becaus e D.F.Ós

condition was unrelated to his work injury, all of the treatment

he had received at FINR and Oppidan constituted overutilization.

31 . After a great deal more legal jockeying, a second peer

review was performed by Dr. Thomas Goldschmidt on January 7,

2011. Dr. Goldschmidt is a specialist in neurology and

psychiatry, and was specifically recommended by Dr. Mignone to

perform an examination of D.F. However, because D.F.Ós attorney

declined to allow the examination, Dr. GoldschmidtÓs opinion was

bas ed on his review of the medical record and Dr. MignoneÓs

evaluation. He summarized his findings as follows:

The claimant experienced MTBI [mild

traumatic brain injury] on May 9, 2003. He

reported loss of consciousness for seconds

and was able to drive hi mself home

afterwards. Serial evaluations over time

have chronicled multiple normal CT brain

scans, normal forty - eight hour EEG

monitoring suggesting PNES [psychogenic

nonepileptic seizures, i.e., seizures with a

psychological cause], symptom

exaggeration /malingering on

neuropsychological testing, pertinacious

somatic preoccupation with trait

characterological disturbance consistent

with passive - dependent underpinnings, and

counter - therapeutic institutionalization at

OPPIDAN. As such, the claimantÓs clini cal

course has iatrogenically served to enhance

his misguided perception of being Ðbrain

injuredÑ in pursuit of satisfying his

formidable but chronically frustrated

dependency needs. Furthermore, his clinical

course is atypical for MTBI and cannot be

obje ctivity [sic] reconciled with the

neuropsychological or clinical data provided

for my review. From a non - organic

perspective, the claimant has parlayed his

seven year old MTBI into a state of

invalidism largely facilitated by OPPIDAN.

In effect, his illn ess - behavior has been

iatrogenically perpetuated by reinforcing

the notion of Ðbrain injuryÑ and treatment

of psychogenic - mediated symptomatology

unrelated to his 2003 work injury.

32 . Negotiations continued and a private mediation

resulted in a negotiat ed settlement between Petitioners and D.F.

T he parties agreed that Petitioners would no longer be

responsible for workersÓ compensation benefits as of the date

the agreement was signed, though D.F. would continue to receive

payments for lost wages and sup plemental benefits. It was

agreed that Petitioners would cease making payments to

FINR/Oppidan on August 30, 2011, the date that D.F.Ós residency

would discontinue.

33 . In light of PetitionersÓ suspicions regarding D.F.Ós

possible malingering, it is reas onable to ask why they never

disallowed or adjusted any of the bills generated by

FINR/OppidanÓs treatment of D.F. Mr. Stern testified that

Petitioners did not unilaterally disallow payment out of fear

that FINR/Oppidan might retaliate against D.F. by imm ediately

discharging him, thereby risking another suicide attempt and

possible tort liability for Petitioners. 4 / Petitioners also

feared that unilateral disallowance of payments could negatively

affect their ongoing negotiations with D.F.Ós counsel regard ing

voluntary discharge from Oppidan.

34 . On January 28, 2011, Petitioners filed the

Reimbursement Petition with the Department , naming FINR and

Oppidan as respondents and expressly disclaim ing any direct

reimbursement dispute with D.F. The Reimbursement Petition

recited the history of D.F.Ós treatment. It did not name a

specific instance of overutilization; rather, it stated that all

of D.F.Ós treatment by FINR and Oppidan constituted

overutilization. The Reimbursement Petition requested that the

Depar tment, Ðin accordance with Section 440.13(6), Florida

Statutes . . . disallow the payment of services previously paid

by the Petitioner[s] and reimbur se Petitioners all sums paid. Ñ

The Reimbursement Petition also requested the return of payments

made by P etitioners in accordance with section 440.13(11)(a). 5/

35 . Attached to the Reimbursement Petition was a copy of

DFS Form 3160 - 0023, entitled ÐPetition for Resolution of

Reimbursement Dispute,Ñ executed by Wal - Mart and Sedgwick . Just

b elow the title of DF S Form 3160 - 0023 is the following

statement: ÐA Petition for Resolution of Reimbursement Dispute

must be served on the Agency within 30 days after the

PetitionerÓs receipt of a notice of disallowance or adjustment

of payment, pursuant to 69L - 31.008, Flori da Administrative

Code.Ñ Section 440.13(7)(a) likewise provides , in relevant

part :

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 receipt of notice of disallowance

or adjustment of payment, petition the

department to resolve the dispute. The

petitioner must serve a copy of the petition

on the carrier and on all affected parties

by certified mail. The petition must be

accompanied by all documents and records

that support the allegations contained in

the petition. Failure of a petitioner to

submit such documentation to the department

results in dismissal of the petition.

36 . FINR and Oppidan filed a Motion to Dismiss the

Reimbursem ent Petition arguing that jurisdiction for a

reimbursement review can be invoked only where a medical bill

has been disallowed or adjusted for payment. They further

argued that Petitioners could not invoke the DepartmentÓs

jurisdiction to conduct a mandat ory utilization review under

section 440.13(6) because of that subsectionÓs provision that if

a carrier finds that overutilization of medical services has

occurred, the carrier Ð must disallow or adjust payment for such

services.Ñ FINR/Oppidan argued that the dispute mechanism

afforded a carrier under section 440.13 is limited to

disallowing or adjusting a payment , which triggers the filing of

a petition by the health care provider and a response from the

carrier. Given that the Sedgwick did not disallow o r adjust any

payments, the Reimbursement Petition should be dismissed.

37 . As a result of the Reimbursement Petition, the

Department initiated an investigation of FINR/Oppidan and of

Dr. Villalba individually as medical director of FINR/Oppidan

pursuant t o section 440.13(11). Eric Lloyd, who at the time was

program administrator of the office of medical services in the

Division of WorkersÓ Compensation, testified that the Department

did not then have a formalized method for reporting provider

violations a nd that the language of 440.13(7) makes it clear

that only a health care provider may pursue a petition for

resolution of a reimbursement dispute. Mr. Lloyd stated that

the Department therefore treated the Reimbursement Petition as a

report of provider vi olation and converted the matter into a

review under section 440.13(11).

38. Delays in the resolution of the audit were caused by

the need to advertise for and contract the services of an Expert

Medical Advisor (ÐEMAÑ) pursuant to section 440.13(9). The

DepartmentÓs initial contracting efforts were futile. Two

contracted EMAs disqualified themselves for conflicts of

interest. The Department finally engaged the services of a

certified EMA, Dr. Imfeld, a specialist in the field of physical

medicine and re habilitation.

39 . Dr. Imfeld reviewed D.F.'s medical records from

FINR/Oppidan , as well as the reports from the various doctors

that were provided to the Department by the parties.

Petitioners provided documents pursuant to a ÐHealth Care

Provider Viol at ion Referral Document Request Ñ issue d by the

Department on March 31 , 2011, and a ÐHealth Care Provider

Violation Referral Document Request AddendumÑ issued by the

Department on April 4, 2011. Both documents required the

carrier to submit various forms of documentation.

40 . The DepartmentÓs initial document request state s that

the Reimbursement Petition alleged Ðthat services rendered by

Dr. Jorge Villalba, M.D. (hereinafter ÐProviderÑ), for the

treatment rendered to the above referenced injured employ ee

while an inpatient at FINR/OPPIDAN was in excess of established

practice parameters and protocols of treatment established in

Chapter 440, Florida Statutes.Ñ In fact, the Reimbursement

Petition made its allegations against FINR and Oppidan as

instituti ons. Dr. Villalba was not mentioned by name in the

Reimbursement Petition. The only reference to him was a

statement that Ð[b]oth entities seemingly have the same medical

director or attending physician.Ñ

41 . Pamela Macon, bureau chief of the bureau of monitoring

and audit in the Division of WorkersÓ Compensation, conceded at

the hearing that it was her off ice that decided to include

Dr. Villalba in the investigation because he was the medical

director of the facilities. The language of the document

req uests plainly reflects an attempt to impute to Petitioners

the DepartmentÓs own decision at the outset of the investigation

to focus on Dr. Villalba individually.

42 . The end result of the investigation was that charges

were brought against Dr. Villalba , but not against FINR or

Oppidan as institutions. As explained more fully below, t he

case against Dr. Villalba was settled . N o case was ever brought

against the institutions. The following colloquy at the hearing

is between Ms. Macon and counsel for Peti tioners:

Q. And as I understand it, you added

Dr. Villalba to the case because he would

have been, as the medical director,

responsible for any medical care that was

provided within the facility and he then

should be responsible?

A. Yes.

Q. That Ó s why y ou added him?

A. Correct.

Q. But then you changed your mind and

determined that he wasn Ó t involved with it

at all, so you weren Ó t going to give Î you

weren Ó t going to penalize him?

A. Right, that he didn Ó t render the direct

care.

Q. Okay. Did you ever make a

determination who did the direct care?

A. Not to my knowledge, no.

43 . Mr. Lloyd testified as to a policy dispute within the

agency as to whether a Ðhealth care providerÑ violation may be

brought only against individual health care providers or whether

a facility can also be found in violation and sanctioned. He

acknowledged that the statutory term Ðhealth care providerÑ

explicitly includes health care facilities, but cited the

difficulty involved in disciplining a facility such as FINR,

which t reats multiple injured workers. If the Department bars

an entire facility, it would affect not just the individual

injured worker whose treatment is in question but any others the

facility is treating now or in the future. 6/

44 . In his report, dated Au gust 12, 2013, Dr. Imfeld

concluded that while D.F.'s 2003 accident resulted in a mild

traumatic brain injury, it did not cause a seizure disorder or

Parkinson's disease. He further concluded that all of the

inpatient treatment from FINR/Oppidan was exces sive and not

medically necessary.

45 . On September 23, 2013, the Department entered its

ÐReport of Health Care Provider Investigation and Notice of

Intent to Impose Penalties Pursuant to £440.13, F.S.Ñ 7/ The

Notice of Intent was directed to Dr. Villalba individually and

stated as follows, in relevant part:

The record in this matter, corroborated by

the EMA opinion, evidences certain care that

was neither medically necessary nor

clinically appropriate for D.F.'s

compensable condition. Accordingly, the

De partment finds that because of your role

at FINR and OP PID AN, you have directly or

indirectly engaged in a pattern or practice

of overutilization or a violation of Chapter

440, Florida Statutes, in the treatment

rendered to D.F.

46 . Dr. Villalba filed a Petition for Formal

Administrative Hearing on October 7, 2013, in response to the

Notice of Intent . The Department and Dr. Villalba agreed to

hold the case in abeyance rather than forward it to DOAH. The

case was ultimately settled, the parties entering into a

Settlement Stipulation for Consent Order on May 13, 2014. The

settlement provided that the Department would withdraw and

dismiss its Notice of Intent and that Dr. Villalba would

withdraw and dismiss his petition for an administrative hearing

with prejudice.

47. Mr. Lloyd testified that after the Notice of Intent

was filed against Dr. Villalba, the Department received a

R ecommended O rder from an Administrative Law Judge in another

DOAH case in which the Department had issued a Notice of Intent

ag ai nst an individual physician for overutilization . The

R ecommended O rder was Ðpretty critical of the Department and the

process that was involved,Ñ and the Department felt obliged to

enter a settlement for attorneyÓs fees. Mr. Lloyd testified

th at the Depa rtment believed Dr. VillalbaÓs case had Ðthe same

shortcomingsÑ as that earlier case . Mr. Lloyd stated that this

belief played a large role in the decision to settle with

Dr. Villalba in lieu of trying to prove a difficult case of

overutilization in a for mal proceeding .

4 8 . Wal - Mart and Sedgwick were given no notice of the

settlement negotiations or the entry of the Settlement

Stipulation for Consent Order between the Department and

Dr. Villalba. Mr. Lloyd testified that there is no statutory

obligation for the Department to apprise the complainant of the

status of the DepartmentÓs investigations.

4 9 . On March 23, 2015, the Department issued an order

titled ÐWorkersÓ Compensation Medical Services Reimbursement

Dispute DismissalÑ that purported to dispos e of the

Reimbursement Petition filed by W al - Mart and Sedgwick on

January 28, 2011. The order provided as follows, in relevant

part:

There is no information to suggest that Wal -

Mart, Inc. or Sedgwick CMS discontinued

authorization for treatment and care f or

[D.F.] by the Respondent herein during the

specified dates of service.

* * *

T he issues raised by Wal - Mart, Inc. and

Sedgwick CMS are utilization review issues,

not appropriate for resolution in

reimbursement dispute resolution proceedings

under secti on 440.13(7), Florida Statutes.

The utilization issues were resolved by the

Department in its MSS Case No. ROV00039 and

Department Case No. 143376 [i.e., the case

against Dr. Villalba that was dismissed via

Consent Order].

Therefore, this Petition for Re solution of

Reimbursement Dispute in MMS Case No.

20110531 - 001 is hereby DISMISSED.

CONCLUSIONS OF LAW

50 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding, at least to the extent of det ermining subject matter

jurisdiction. §§ 120.569 and 120.57(1), Fla. Stat .

51. Chapter 440, Florida Statutes, is the WorkersÓ

Compensation Law, the purpose of which has been described as Ðto

provide for employers a liability that is limited and

determina tive, and to employees a remedy that is both

expeditious and independent of proof of fault.Ñ Florida

Erection Serv s ., Inc. v. McDonald , 395 So. 2d 203, 209 (Fla. 1st

DCA 1981). Section 440.015 sets forth the legislative intent as

follows, in relevant par t:

It is the intent of the Legislature that the

WorkersÓ Compensation Law be interpreted so

as to assure the quick and efficient

delivery of disability and medical benefits

to an injured worker and to facilitate the

workerÓs return to gainful reemployment at a

reasonable cost to the employer . . . . It

is the intent of the Legislature to ensure

the prompt delivery of benefits to the

injured worker. Therefore, an efficient and

self - executing system must be created which

is not an economic or administrative burden.

The department, a gency [ for Health Care

Administration], the Office of Insurance

Regulation, the Department of Education, and

the Division of Administrative Hearings

shall administer the WorkersÓ Compensation

Law in a manner which facilitates the self -

execution of the system and the process of

ensuring a prompt and cost - effective

delivery of payments.

52. This proceeding focuses on section 440.13, which

establishes the regulatory structure for providers and carriers

of medical and related services to injured employees. At issue

is the DepartmentÓs application of section 440.13 to its

utilization review responsibilities regarding the medical

services that Intervenors provided to D.F.

53. Section 440.13(2) establishes the duty of an employer

to Ðfu rnish to the employee such medically necessary remedial

treatment, care, and attendance for such period as the nature of

the injury or the process of recovery may require, which is in

accordance with established practice parameters and protocols of

treatme nt as provided for in this chapter.Ñ Section

440.13(3)(a) provides that a certified health care provider must

receive authorization from the carrier before providing

treatment to an injured employee.

54 . Section 440.13(1) provides as follows, in relevant

part:

(1) DEFINITIONS. Ï As used in this section,

the term:

* * *

(k) ÐInstance of overutilizationÑ means a

specific inappropriate service or level of

service provided to an injured employee that

includes the provision of treatment in

excess of established pract ice parameters

and protocols of treatment established in

accordance with this chapter.

* * *

(o) ÐPattern or practice of

overutilizationÑ means repetition of

instances of overutilization within a

specific medical case or multiple cases by a

single he alth care provider.

* * *

(r) ÐReimbursement disputeÑ means any

disagreement between a health care provider

or health care facility and carrier

concerning payment for medical treatment.

* * *

(t) ÐUtilization reviewÑ means the

evaluation of the appro priateness of both

the level and the quality of health care and

health services provided to a patient,

including, but not limited to, evaluation of

the appropriateness of treatment,

hospitalization, or office visits based on

medically accepted standards. Such

evaluation must be accomplished by means of

a system that identifies the utilization of

medical services based on practice

parameters and protocols of treatment as

provided for in this chapter.

55 . Section 440.13(6) , titled ÐUtilization Review,Ñ pla ces

the responsibility upon carriers such as Sedgwick to review all

claims for payment from healthcare providers to identify

potential Ðoverutilization and billing errorsÑ and disallow or

adjust payment, providing as follows in relevant part:

Carriers shal l 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

established in accordance with t his chapter,

and may hire peer review consultants or

conduct independent medical evaluations

. . . . 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

protoc ols 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 th is section and rules

adopted by the department.

56. Section 440. 20 is titled, Ð Time for payment of

compensation and medical bills; penalties for late payment.Ñ

Section 440.20(2)(b) provide s as follows:

The carrier must pay, disallow, or deny all

medica l, dental, pharmacy, and hospital

bills submitted to the carrier in accordance

with department rule no later than 45

calendar days after the carrierÓs receipt of

the bill. [8/]

57. Section 440.13(7), titled ÐUtilization and

Reimbursement Disputes,Ñ provid es as follows:

(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 receipt of notice of disallowance

or adjustment of payment, peti tion the

department to resolve the dispute. The

petitioner must serve a copy of the petition

on the carrier and on all affected parties

by certified mail. The petition must be

accompanied by all documents and records

that support the allegations containe d in

the petition. Failure of a petitioner to

submit such documentation to the department

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 carrierÓs disallowance or

adjustment. Failure of the carrier to

timely submit the requested documentation to

the department 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 pr operly 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.

(f) Any carrier that engages in a pattern

or practice of arbitrarily or unreasonably

disallowing or reducing payments to health

care providers may be subject to one or more

of the following penalties imposed by the

department:

1. Repayment of the appropriate amount to

t he health care provider.

2. An administrative fine assessed by the

department in an amount not to exceed $5,000

per instance of improperly disallowing or

reducing payments.

3. Award of the health care providerÓs

costs, including a reasonable attorneyÓs

f ee, for prosecuting the petition.

58. Section 440.13(8), titled ÐPattern or Practice of

Overutilization,Ñ requires carriers to report all instances of

overutilization to the Department and requires the Department to

make a determination whether a pattern or practice of

overutilization exists. Section 440.13(8) provides as follows:

(a) Carriers must report to the department

all instances of overutilization including,

but not limited to, all instances in which

the carrier disallows or adjusts payment or

a determination has been made that the

provided or recommended treatment is in

exces s of the practice parameters and

protocols of treatment established in this

chapter. The department shall determine

whether a pattern or practice of

overutilization exists.

(b) If the department determines that a

health care provider has engaged in a

pa ttern or practice of overutilization or a

violation of this chapter or rules adopted

by the department, including a pattern or

practice of providing treatment in excess of

the practice parameters or protocols of

treatment, it may impose one or more of the

following penalties:

1. An order of the department barring the

provider from payment under this chapter;

2. Deauthorization of care under review;

3. Denial of payment for care rendered in

the future;

4. Decertification of a health care

provider certified as an expert medical

advisor under subsection (9) or of a

rehabilitation provider certified

under s. 440.49;

5. An administrative fine assessed by the

department in an amount not to exceed $5,000

per instance of overutilization or

violation; and

6. Notification of and review by the

appropriate licensing authority pursuant to

s. 440.106(3).

59. Section 440.13(11), titled ÐAudits,Ñ provides as

follows, in relevant part:

(a) The department may investigate health

care providers to determine whether

providers are complying with this chapter

and with rules adopted by the department,

whether the providers are engaging in

overutilization, whether providers are

engaging in improper billing practices, and

whether providers are adhering to practice

parameters and protocols established in

accordance with this chapter. If the

department finds that a health care provider

has improperly billed, overutilized, or

failed to comply with department rules or

the requirements of this chapter, including,

but not limited to, practice parameters an d

protocols established in accordance with

this chapter, it must notify the provider of

its findings and may determine that the

health care provider may not receive payment

from the carrier or may impose penalties as

set forth in subsection (8) or other

se ctions of this chapter. If the health

care provider has received payment from a

carrier for services that were improperly

billed, that constitute overutilization, or

that were outside practice parameters or

protocols established in accordance with

this ch apter, it must return those payments

to the carrier. The department may assess a

penalty not to exceed $500 for each

overpayment that is not refunded within 30

days after notification of overpayment by

the department or carrier.

(b) The department shall monitor carriers

as provided in this chapter. . . .

(c) The department has exclusive

jurisdiction to decide any matters

concerning reimbursement, to resolve any

overutilization dispute under subsection

(7), and to decide any question concerning

overutil ization under subsection (8), which

question or dispute arises after January 1,

1994.

60. The statutory structure for review of overpayment

and/or overutilization issues is straightforward. Section

440.13(6) places upon the carrier the duty to review al l claims

for payment and to disallow or adjust payment when it finds

there ha s been an overutilization of medical services or a

billing error. The statute specifically states that the

disallowance or adjustment must be made Ðwithout order of a

judge of co mpensation claims or the department.Ñ Section

440.20(2)(b) gives the carrier 45 calendar days in which to

Ðpay, disallow, or denyÑ a bill submitted by a health care

provider. There is no dispute that Sedgwick did not disal low or

adjust any of the bills s ubmitted by FINR/Oppidan. Sedgwick

paid all of the bills without adjustment.

61. Section 440.13(7) sets forth a procedure for

contesting Ðthe disallowance or adjustment of payment by a

carrier under subsection (6).Ñ It makes no provision for the

situati on presented by the instant case, i.e., a carrier that

has already made payment to a health care provider under

subsection (6) seeking to require disgorgement of those payments

on grounds of overutilization.

62. That subsec tion (7) does not envision a c ontest by the

paying carrier is made clear by the limited array of remedies

offered by paragraph (7)(f): repayment by the carrier to the

health care provider; a fine for each instance of improperly

disallowing or reducing payments by the paying carrier; a nd the

award of costs to the health care provider. None of these

remedies would assist Petitioners in the instant case.

63. Section 440.13(8) places upon the carrier the duty to

report to the Department all instances of overutilization,

regardless of wh ether the carrier disallowed or adjusted payment

to the provider. In turn, the Department is required to

determine whether a pattern or practice of overutilization

exists. If the Department finds a pattern or practice of

overutilization or a violation of chapter 440 or rules adopted

pursuant thereto, the Department may impose an array of

penalties on the offending health care provider. None of these

penalties includes repaying the carrier for payments already

made by the carrier. Subparagraph (8)(b)5. p rovides for the

payment of an administrative fine of up to $5,000 per instance

of overutilization, but application of this provision would

provide no direct benefit to Petitioners.

64. Section 440.13(11) provides that the Department may

investigate healt h care providers to determine whether they are

complying with chapter 440 and the rules adopted pursuant

thereto and whether they are engaging in overutilization, among

other things. If the Department finds that a provider has

engaged in overutiliz ation , it Ðmay determine that the health

care provider may not receive payment from the carrier, or may

impose the penalties set forth in subsection (8) or other

sections Ñ of chapter 440.

65. Pertinent to this case, section 440.13(11)(a)

provides: ÐIf the healt h care provider has received payment

from a carrier for services that were improperly billed, that

constitute overutilization, or that were outside practice

parameters or protocols established in accordance with this

chapter, it must return those payments to the carrier .Ñ

(Emphasis added) . The Department may assess a penalty not

exceeding $500 for each overpayment that is not refunded within

30 days after notification of overpayment by the Department or

carrier.

66. Section 440.13(11)(c) provides that th e Department has

exclusive jurisdiction to decide any matters concerning

reimbursement, to resolve any overutilization dispute under

subsection (7), and to decide any question concerning

overutilization under subsection (8).

67. City of Hollywood v. Be noit , 830 So. 2d 254 (Fla. 1st

DCA 2002), involved an injured worker who began receiving

benefits in 1995. In 1999, the employer/carrier conducted a

utilization review pursuant to 440.13(6) and began disallowing

payment of bills submitted by two health ca re providers. One of

the providers requested dispute resolution at the Agency for

Health Care Administration (ÐAHCAÑ), which at that time was the

investigative agency pursuant to section 440.13(7) . 9/ After ACHA

failed to resolve the dispute, the employer /carrier petitioned

the Court for a writ of mandamus compelling AHCA to promptly

resolve the matter, citing as authority sections 440.13(7), (8),

and (11).

68. The Court granted the petition for writ of mandamus

insofar as it related to AHCAÓs failure to act in a timely

manner pursuant to section 440.13(7). However, the Court also

held as follows:

With regard to agency action under section

440.13(8) or 440.13(11), or both, we agree

with AHCA that these are matters which are

within its discretion. The emp loyer/carrier

may not compel the agency to undertake

actions in accordance with those statutory

subsections. We accordingly deny the

petition for writ of mandamus to the extent

it requests this Court to compel AHCA to

initiate proceedings pursuant to se ctions

440.13(8) and 440.13(11), Florida Statutes.

Benoit , 830 So. 2d at 255.

69. The Benoit decision makes clear that the Department

cannot be compelled to undertake the discretionary actions

contemplated by subsections (8) and (11). The Department and

Intervenors contend that Petitioners lack standing to seek an

order forcing the Department to undertake those discretionary

actions.

70. Petitioners concede that Benoit establishes that the

DepartmentÓs decision to initiate an investigation under section

440.13(11)(a) is discretionary and cannot be coerced. However,

Petitioners argue that in the instant case, the Department has

already exercised its discretion under section 440.13(11)(b).

Pursuant to the Reimbursement Petition, the Department initiated

and completed an investigation. The investigation caused the

Department to conclude that there had been overutilization in

the treatment of D.F. and to file the Notice of Intent against

Dr. Villalba. Petitioners argue that they are entitled to

reimbursem ent under th e statutory language providing, ÐIf the

health care provider has received payment from a carrier for

services . . . that constitute overutilization, . . . it must

return those payments to the carrier.Ñ £ 440.13(11)(a), Fla.

Stat.

71. Petition ers argue that the result of the DepartmentÓs

investigation was a finding of overutilization against

FINR/Oppidan, notwithstanding that charges were brought only

against Dr. Villalba. Petitioners contend that FINR/OppidanÓs

failure to request a chapter 12 0 review of the overutilization

finding rendered the DepartmentÓs audit final as to

FINR/Oppidan. In this, Petitioners are simply mistaken.

FINR/Oppidan was never the target of the DepartmentÓs

investigation and no actionable findings were ever made agai nst

them . As noted at Finding s of Fact 40 - 41 , supra , the

DepartmentÓs target from the outset of the investigation was

Dr. Villalba, not the health care facil i ties.

72. In the above Findings of Fact, the undersigned made

clear his unease at the sleight - of - hand performed by the

Department during its investigation. The Department first

determined, for policy reasons, that the health care facilities

should not be subjected to the penalties set forth in

subsections (8 ) and (11), despite their statutory inc lusion as

Ðhealth care providersÑ in section 440.13(1)(h). The Department

next de cided to focus solely on Dr. Villalba because he was the

medical director of FINR/Oppidan . The Department later drop ped

the charges against Dr. Villalba in part because he d id not

personally oversee D.F.Ós treatment. The Department did not

bother to determine who did provide direct care to D.F. The

Department settle d the case against Dr. Villalba, meaning that

no finding of overutilization was finalized against any of the

e ntities that provided treatment to D.F.

73. Therefore, it appears that Petitioners do not have a

remedy under section 440.13(8) and (11). In however desultory a

fashion, the Department performed its duties in accordance with

the letter of the cited provi sions. It made an initial

determination that a pattern or practice of overutilization

existed as to Dr. Villalba. When its initial determination was

challenged by Dr. Villalba, the Department chose to settle the

matter. Contrary to PetitionersÓ contenti on, t he Department

never made a formal finding or allegation of overutilization

against FINR or Oppidan, and neither section 440.13(8) or (11)

provides a means to compel the Department to do so after the

settlement of the enforcement matter against Dr. Vil lalba.

74. The facts presented at the hearing did not establish

that the Department abused its discretion in failing to make an

initial finding of overutilization against FINR/Oppidan, a

finding which would have commenced a chapter 120 hearing process

i n which the Department would have had to demonstrate by clear

and convincing evidence that FINR/Oppidan had engaged in

overutilization. See Dept. of Banking & Fin. v. Osb orne Stern &

Co. , 670 So. 2d 83 (Fla. 1996)(to impose administrative fines or

penalti es, agency must prove statutory violations by clear and

convincing evidence).

75. In light of the facts that Petitioners did not contest

any of the charges made by FINR/Oppidan until long after they

paid them in full and that any administrative hearing would

involve proving a years - old case with expert opinions based on a

paper record, and further in light of the DepartmentÓs policy

consideration that enforcement actions against health care

facilities could have negative impacts on other injured workers

being treated at those facilities, it was at least arguably

prudent for the Department to limit its initial enforcement

action in this case to Dr. Villalba.

76. The undersigned has expressed some skepticism as to

the wisdom of the DepartmentÓs decision not to pursue either the

health care facilities or any of the physicians who actually

provided treatment to D.F., but nonetheless concludes that such

decision is discretionary with the Department and that this

discretion has not been abused in this case.

7 7. Section 440.13(8) requires carriers to report to the

Department all instances of overutilization. It requires the

Department to make a determination whether a pattern or practice

of overutilization exists , but provides no point of entry for a

carrier to contest any action by the Department.

78 . Section 440.13(11) provides that the Department may

investigate health care providers to determine, among other

things, whether they are engaging in overutilization. The

statute does not provide any means of f orcing the Department to

conduct an investigation.

79 . Subsection (11) does provide that if the Department

determines that a health care provider has received payments

from a carrier that constitute overutilization, the provider

Ð must return those payme nts to the carrier.Ñ The Department

would issue an order preliminarily determining that the health

care provider has engaged in overutilization and is subject to

the penalties provided by section 440.13(8) and (11). The

health care provider would be enti tled to contest the

DepartmentÓs order in a chapter 120 proceeding.

80. It is uncertain whether the carrier would ha ve a right

to participate in this chapter 120 proceeding. T he general rule

is that a citizen does not have the right to intervene in an

agency enforcement proceeding . Morgan v. DepÓt of Envtl. Prot. ,

98 So. 3d 651, 652 - 53 (Fla. 3d DCA 2012) . However, in this case

the statute names the carrier as entitled to reimbursement of

payments for services that constitute overutilization . Such

spe cific mention in the statute could establish a righ t to

intervene . However, a n intervenorÓs rights are Ðconditional in

that they exist only so long as the litigation continues between

the parties.Ñ Envtl. Confederation of Sw . Fla., Inc. v. IMC

Phosphates , Inc. , 857 So. 2d 207, 211 (Fla. 1 st DCA 2003) . If

the parties decide to settle or voluntarily dismiss the case,

the intervenorÓs rights are foreclosed. Id.

81 . In any event, t he Notice of Intent to Dr. Villalba was

the only conceivable point of en try for Petitioners to assert

their claim for reimbursement under section s 440.13(8) and (11).

PetitionersÓ counsel was provided the Notice of Intent.

Petitioners point to no statutory obligation that required the

Department to provide them with addition al notice during the

negotiations with Dr. Villalba . The Department and Dr. Villalba

settled the case before it was referred to DOAH. No right of

Petitioners was violated. The Department properly dismissed the

Reimbursement Petition.

82. During the per iod of D.F.Ós treatment by FINR/Oppidan,

Petitioners had abundant opportunities to avail themselves of

the remedy afforded by section 440.13(6) in accord with the

Ðefficient and self - executing systemÑ envisioned by the

Legislature. Petitioners had their o wn prudential reasons for

deciding not to deny payment of the bills and invoices submitted

by FINR/Oppidan, including the fear of a lawsuit should D.F.

attempt to harm himself. Once they declined their affirmative

right to deny payment under subsection (6 ), PetitionersÓ ability

to obtain reimbursement was subject to the DepartmentÓs

discretion under subsection (11). PetitionersÓ remorse at

having paid in full for what in hindsight appears to have been

overutilization of services , however justified, does n ot of

itself give rise to a remedy beyond th ose offered by the

statute. DOAH does not have authority to fashion equitable

re medies . See § 26.012, Fla. Stat.

83 . Under the circ umstances presented by the facts of this

case, Petitioners lack standing to invoke the remedies afforded

by sections 440.13(8) and (11 ) , Florida Statutes, in this

tribunal. It is unnecessary to reach the other issues presented

in the above Statement of th e Issues.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED that the Department of Financial Services,

Division of WorkersÓ Compensation , issue a f inal o rder

dismissing the Petition for Formal Administrative Hearing.

DONE AND EN TERED this 1 9 th day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 1 9 th day of February , 2016 .

ENDNOTES

1/ Through the final hearing, Intervenors were re presented by

Ginger Barry Boyd and Lacey D. Corona, Broad and Cassel, 4100

Legendary Dr ive , Suite 280, Destin, Florida 32541. By Order

dated December 18, 2015, IntervenorsÓ motion to substitute

Mr. Thompson as counsel was granted.

2 / Chapter 394, Part I , Florida Statutes, is called the ÐThe

Florida Mental Health ActÑ or ÐThe Baker Act.Ñ In relevant

part, the Baker Act provides for the involuntary inpatient

placement for treatment upon a finding of a court by clear and

convincing evidence that the person is mentally ill and because

of that mental illness has refused voluntary placement for

treatment or is unable to determine for himself that such

placement is necessary. The court must also find that the

person is Ðmanifestly incapableÑ of surviving alone or with the

help of willing family or friends and that his neglect to or

refusal to care for himself poses a real and substantial threat

to his well - being, or that there is a substantial likelihood

that he will in the near future inflict serious bodily ha rm on

himself or another person. § 394.467(1), Fla. Stat.

3 / It should be noted that, although D.F. was residing at the

Oppidan facility, he went home on most weekends and took a ten -

day vacation to Maine during this period.

4 / Elizabeth Rock, directo r of accounts receivable for FINR,

testified at the hearing that FINR acknowledges its ethical

obligation to continue care of residents even after they are no

longer eligible for reimbursement from an insurer or employer.

She testified that FINR/Oppidan w ould have continued D.F.Ós

treatment even if the carrier had disallowed or reduced the

payments.

5 / The other claims for relief cited in the Petition are not

relevant because, at the outset of the final hearing, the

parties stipulated that Petitioners we re seeking relief only

under subsections (8) and (11) of section 440.13.

6 / Mr. LloydÓs testimony finessed the fact that an array of

disciplinary actions is available to the Department short of

barring a provider from participating in the workersÓ

compe nsation program. See § 440.13(8)(b), Fla. Stat.

7 / Counsel for Petitioners is listed as a recipient of a mailed

copy of this document.

8 / During the period relevant to this proceeding, Florida

Administrative Code R ule 69L - 7.710(5)(k) provided:

(k) A n insurer, service company/TPA [third

party administrator] or any entity acting on

behalf of the insurer shall pay, adjust,

disallow or deny billed charges within 45 -

calendar days from the date insurer

received, pursuant to Section 440.20(2)(b),

F.S.

Ef fective February 18, 2016, the substance of this language will

be found at rule 69L - 7.740(12).

9 / At the time of Benoit , AHCA was also the investigative agency

under sections 440.13(8) and (11)(a). The substance of those

provisions is otherwise substant ially the same as the version

under discussion in the instant case.

COPIES FURNISHED :

Cynthia L. Jakeman, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

James N. McConnaughhay, Esquire

McConna ughhay, Duffy, Coonrod,

Pope, Weaver, Stern & Thomas, P.A.

Suite 200

1709 Hermitage Boulevard

Tallahassee, Florida 32308

(eServed)

Lacey DeLori Corona, Esquire

Broad and Cassel

Suite 280

4100 Legendary Drive

Destin, Florida 32541

(eServed)

Dani el Hays Thompson, Esquire

Berger Singerman , LLP

Suite 300

125 South Gadsden Street

Tallahassee, Florida 32301

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

2 0 0 East Gaines Street

Tallahassee, Fl orida 32399 - 0390

(eServed)

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 th at

will issue the final order in this case.