18-003844 Zenith Insurance Company vs. Department Of Financial Services, Division Of Workers' Compensation, Medical Services Status: Closed Recommended Order on Wednesday, May 8, 2019.

Summary: Carrier made improper adjustment, but no additional reimbursement required; Stop-Loss formula in rule 69L-7.501 not applicable pursuant to section 120.57(1)(e).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZENITH INSURANCE COMPANY,

Petitioner,

vs. Case No. 18 - 3844

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS'

COMPENSATION, MEDICAL SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge Hetal Desai of the Division of

Administrative Hearings (DOAH) held a final hearing in this

matter in Tallahassee, Florida, on November 29, 2018.

APPEARANCES

For Petitioner: Ralph Paul Douglas, Esqui re

McConnaughhay, Coonrod, Pope,

Weaver & Stern, P.A.

Suite 200

1709 Hermitage Boulevard

Tallahassee, Florida 32308

For Respondent: Tabitha G. Harnage, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

Thomas Nemecek, Esquire

Department of Financial Services

Div ision o f WorkersÓ Compensation

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

Whether Respondent, Department of Financial Services,

Division of WorkersÓ Compensation, Medical Service s (the

Department) , correctly determined t he amount of reimbursement

Petitioner , Zenith Insurance Company (Zenith), owes to Lawnwood

Regional Medical Center (Lawnwood) for medical services, pursuant

to section 440.13(7), Florida Statutes (2018) . 1/ More

sp ecifically, the issues raised in this case are:

(1) w hether Zenith properly adjusted or disallowed payment

by paying what it believed were ÐreasonableÑ charges for the

WorkersÓ Compensation medical services provided;

(2) whether the DepartmentÓs cons ideration of a ÐStop - LossÑ

percentage - based methodology , as opposed to a per diem rate, may

serve as a basis for reimbursement ; and

( 3 ) what , if any, is the additional amount Zenith owes to

Lawnwood for reimbursement in this case.

PRELIMINARY STATEMENT

O n April 22, 2016, the Department received a Petition for

Resolution of Reimbursement on behalf of Lawnwood . Zenith filed

its response with the Department on May 12, 2016. On July 5,

2016, the Department issued a Reimbursement Dispute Determination

findin g the Ð Total Correct Reimbursement Amount Ñ was $122,271.23.

This amount was calculated without consideration of any past

payment by Zenith. The total amount was based on a Stop - Loss

formula 2 / and based on the DepartmentÓs application of a proposed

rule d isregarding contractual arrangement s between medical

service providers and insurance carriers . That proposed rule was

invalidated in Fl orida Society of Ambulatory Surgical C enters,

Inc. v. Dep artment of Fin ancial Serv ices , Case No. 17 - 3025RP

( Fla. DOAH No v. 30, 2017)(FSASC final order). Based on the FSASC

final order, the Department issued a Reimbursement Dispute

Amende d Determination on June 14, 2018 ; and a Reimbursement

Dispute Second Amended Determination to correct a scrivenerÓs

error o n June 21, 2018 .

On July 17, 2018, Zenith filed a Petition f or a Section

120.57(1), F.S. Administrative Hearing with the Department, which

was referred to DOAH along with the Reimbur s ement Dispute Amended

D etermination dated June 14, 2018 .

On August 8, 2018, the Depar tment was ordered to notify

Lawnwood of the proceeding and the date of the final hearing.

The Department filed and served a Notice to Potential Party on

August 22, 2018. The Notice indicated Lawnwood may have a

substantial interest in these proceedings, and provided the

manner for Lawnwood to intervene. Lawnwood did not move to

intervene and did not participate in these proceedings.

After one continuance (due to Hurricane Michael), the final

hearing was noticed for November 29, 2018. On November 27, 20 18,

the Department filed a Motion in Limine to Exclude Opinion

Testimony of Kevin McCarty. That m otion was granted by separate

order on April 11, 2019.

At the final hearing, the undersigned granted an ore tenus

motion made by the Department to amend the Reimbursement Dispute

Second Amended Determination. The Reimbursement Dispute Third

Amended Determination (the Third Determination) was admitted as

DFS Exhibit 46, and was filed with DOAH on November 30, 2019.

The Third Determination requires a total rei mbur sement amount of

$110,859.24; or an additional reimbursement owed by Zenith in the

amount of $79,014.54.

T he following exhibits were admitted into evidence: Joint

Exhibits 1 through 7 ; ZenithÓ s Exhibits 8 through 13 , 16, 17 , 22,

27, 32 through 34, 36 through 40, and 47; and the DepartmentÓs

Exhibits 41 through 46. Official recognition was given to

ZenithÓs Exhibits 18 through 21, 24 through 26, 28, and 30.

ZenithÓs Exhibits 14 and 15 were admitted for a limited purpose

as reflected in the Amended Ord er Granting RespondentÓs Motion in

Limine , rendered April 12, 2019.

Zenith presented the testimony of Carol Brodie, its

corporate representative. T he Department presented the testimony

of Lynne Me tz, a registered nurse consultant with the Department,

and Andrew Sabolic, an assistant d irector of the Division of

WorkersÓ Compensation. The deposition transcripts of Linda Joy,

a nurse case manager and bill auditor for Zenith, and Katherine

Trotter, a legal manager for Parallon Business Performance Group

(Para llon) , were also admitted as part of the record.

The Transcript of the final hearing was filed on January 15,

2019; and the final proposed exhibits with redactions were

jointly submitted on March 14, 2019. 3 /

The parties were granted two extensions of ti me to file

their proposed recommended orders (PROs), and were granted an

enlargement of the page limitations set forth in Florida

Administr ative Code Rule 28 - 106.215. Each party timely filed

their PRO on February 28, 2019 , a nd both have been considered.

The parties filed a Joint Pre - hearing Stipulation on

October 8, 2019, containing a n extensive set of facts and

recitations of the law , which are incorporated below w here

appropriate and cited as ÐJt. Stip. Fact ¶ . Ñ 4/

FINDING S OF FACT

Parties and Partici pants

1. The Department is the state agency responsible for

administration of the FloridaÓs WorkersÓ Compensation process set

forth in c hapter 440 . As such, it has exclusive jurisdiction to

decide any matters concerning reimbursement for medical services

under this process. See § 440.13, Fla. Stat.

2. Zenith is a carrier as defined by section 440.13(1)(c) .

3. Lawnwood, a non - party, is a health care facility as

defined by section 440 .13 (1) (g) . Lawnwood is part of a network

known as East Florida Divisi on, Inc. (East Florida) , a division

of HCA Inc.

4. Parallon , a non - party, manages the billing, revenue

cycle management , and reimbursement dispute process for certain

hospitals, including Lawnwood. (Jt. Stip. Facts, ¶ ¶ 33 and 34).

Parallon filed the Peti tion for Resolution of Reimbursement

Dispute in this case on behalf of Lawnwood.

5. Coventry Health Care Workers Compensation, Inc. , and/or

Coventry Life and Health Insurance Company on behalf of First

Health Group Corp. (Coventry), serves as a Ðmiddleman Ñ between

insurance carriers and health care providers. As explained by

Carol Brodie, Coventry offers carriers, such as Zenith, access to

special rates it has negotia ted with health care facilities and

providers. Essentially , Zenith is a third - party be ne ficiary of

the rates negotiated between East Florida and Coventry.

Medical Services at Issue

6. Lawnwood provided health services to a workersÓ

compensation patient (patient) from Janu ary 21 through 25, 2016.

7. The patient was to be treated for a routin e outpatient

surgical procedure to release an extensor tendon of his index

finger. According to the unrefuted testimony of Linda Joy (a

Zenith employee), the surgeon inadvertently cut the patientÓs

digital nerve, artery , and vein. This resulted in more e xtensive

treatment than originally contemplated. The patient was

ultimately admitted to the hospital for inpatient care, and

released four days later.

Payment Dispute

8. Lawnwood issued a bill to Zenith for $163,697.30

(Lawnwood bill) for the services a nd treatment it provided to

patient.

9. Zenith regularly audits bills it receives from health

care providers and makes adjustments if necessary. These

adjustments are provided to the health care provider along with

the payment in the form of an Explanati on of Bill Review (EOBR).

The EOBR goes through each itemized line in a bill and explains

to the provider what was reduced and why.

10. In this case, Zenith sent the Lawnwood bill to Ms. Joy

for review. She reviewed the patientÓs relevant medical recor ds,

as well as billing documentation, and a coding summary sheet

(containing codes for procedures, medications , and other services

utilized by the health care and insurance industry) from

Lawnwood.

11. Ms. Joy opined the Lawnwood bill was very high for the

services provided.

12. Both of the DepartmentÓs witnesses also felt the amount

billed by Lawnwood was unexpected. Andrew Sabolic (an assistant

director at the Department) was surprised at Lawnwood Ós bill ,

stating: Ðit was an amount that I didnÓt an ticipate a hospital

would charge for those types of services.Ñ Similarly, Lynne Metz

(a Department employee ) testified : ÐT he charges were high

compared to what I would expect. Ñ T he Department has not made

any determination or review of whether the bills or charges

submitted by the hospital are reasonable for the services

provided. (Jt. Stip. Fact , ¶ 28).

13. Ms. Joy and other Ze nith staff compare d the charges and

the information on the coding summary sheet with payments of

other similar providers thr ough a medical revenue and billing

database program , known as ÐOPTUM 360 Revenue Cycle ProgramÑ

(OPTUM360).

14. In making the comparison, Zenith also utilized

databases and benchmarks that are accepted in the industry,

including Medicare, the MediSpa n Dru g Data base, Health Care Blue

Book, Health Engine, other state Ós workersÓ compensation

reimbursement formulas, usual and customary charges, and other

hospitals Ó charges in the same zip code as Lawnwood .

15. Based on the OPTUM360 results and its own analysi s ,

Zenith calculated the total reimbursement amount acceptable to

other health care providers under Medicare for t he same treatment

and services would be $11,173.81.

16. As a result, Zenith issued an E OBR that adjusted the

Lawnwood bill and indicated, ÐT HIS BILL HAS BEEN PRICED IN

ACCORDANCE WITH THE TERMS OF YOUR CONTRACT WITH COVENTRY

NATIONAL.Ñ A long with the EOBR, Zenith provided b enchmark data

to Lawnwood to support its repricing, editing or adjustment of

the bills at issue. (Jt. Stip. Facts, ¶¶ 36 and 37).

17. In the EOBR, Zen i th used four explanation codes: Ð 47,Ñ

Ð81,Ñ Ð92,Ñ and Ð93,Ñ as authorized by Florida Administrative

Code Rule 69L - 7.740 (13) (a) and (b) , to explain why payment was

disallowed or adjusted .

18. Code Ð47Ñ ( Payment disallowed: insufficient

documentation: invoice or certification not submitted for

implant ) was used for the disallowance on a line item for an

impla nt. Id. The parties agree that was appropriate.

19. Code Ð81Ñ ( Payment adjusted: billing errors: payment

modified pursuant to charge audit ) was used for the line items

other than the disallowed implant charge, based on Zenith Ós

review of the entire bill, line by line , and resulting

adjust ment . Id.

20. Code Ð92Ñ ( Paid: no modification to information

provided on the medical bill: payment made pursuant to workersÓ

compensation reimbursement manual for hospitals ) was used because

it is generally on all hospital bills. Id.

21. Code Ð93Ñ ( Paid: no modification to information

provided on the medical bill: payment made pursuant to written

contractual arrangement ) was used because Zenith had a contract

with Coventry, and Coventry had an agreement with East Florida

and Lawnwood.

22. The D epartment has not adopted a rule establishing an

EOB R code ( or similar descriptive ex planation ) to be used by a

carrier when the carrier identifies a bill or charge from a

hospital that the carrier deems to be so excessively high so as

to be a n un reasonable basis for reimbursement under the Florida

WorkerÓs Compensation Law. (Jt. Stip. Fa ct, ¶ 8). In other

words, the re is no code in rule 69L - 7.740 for disputing a line

item as being ÐunreasonableÑ or Ðtoo high.Ñ

2 3 . Based on the repriced and adjusted bill, Zenith

reimbursed Lawnwood $31,844.70 for the medical services provided.

(Jt. Sti p. Fact, ¶ 40). This amount was appr oximately three

times the OPTUM360 am ount of $11,173.81 . When asked how Zenith

made the decision to give three times the OPTUM360 amount ,

Ms. Brodie explained:

W e didnÓt take the [OPTUM360] Medicare

payment or even 1 20 or 140 percent of

Medicare, which we thought was more than

fair. . . . So because Florida -- I don't

want to say they're problematic, but Florida

bills, we're seeing such an increase in the

amount of billed charges and we're seeing a

lot of disputes whe n we don't pay to the

penny of what the expected amount is, that we

were trying to go abov e and beyond and try to

make our payment more palatable, I guess, to

the provider. So we wanted to be more than

generous, so we came up with three times

Medicare.

2 4 . Catherine Trotter ( a Parallon employee) Parallon filed

a request for reconsideration of the EOBR with Zenith after

Lawnwood had reviewed it and determined $31,844.70 was

insufficient.

25 . On April 18, 2016, Parallon, on behalf of Lawnwood,

filed a P e tition for R esolution of R eimbursement dispute with the

Department challenging the EOBR and demanding additional payment.

26 . Based on Ms. JoyÓs testimony, Zenith did not contest

the medical necessity of the services provided by Lawnwood, nor

was there ev idence Zenith claimed overutilization (the

appropriateness of the level and quality of health care provided

to the patient ) . Rather, Zenith claimed, and still claims in

these proceedings, it did not pay the billed amount because the

individual charges wer e unreasonable .

Contract Provisions

27 . Zenith and Parallon , on behalf of Lawnwood, agree that

a reimbursement contract applies to this dispute. (Jt. Stip.

Fact, ¶ 35). The Department also based the Third Determination

on the contract provisions.

28 . The parties disagree, however, as to what contract

provisions apply and how they should be applied. At the hearing,

the parties also disputed whether the Department was provided

with the applicable contractual provisions during the petition

process. The undersigned need not determine who sent what to

whom, because this is a de novo proceeding; and what matters is

the evidence admitted at the hear ing. See 120.57(1)(k) , Fla.

Stat.; Haines v. Dep Ó t of Child. & Fams. , 983 So. 2d 602, 606

(Fla. 5th DCA 2008 ).

29 . No contract direct ly between Zenith and Lawnwood was

presented at the hearing.

30 . The following documents, however, establish the

agreement between Coventry and Lawnwood: (1) Amendment to Model

Facility Agreement executed January 20, 2015 (MFA Amendment);

(2) Appendix A, ÐPayment RateÑ (Appendix A); and

(3) Attachment 1, ÐParticipating Facility List (Attachment 1);

and (4) Amendment to Model Facility Agreement between Lawnwood

and Coventry (also known as First Health ) , effective October 1,

20 06 (Lawnwood Amendment). ParallonÓs legal manager testified

the MFA Amendment, Appendix A, Attachment 1, and the Lawnwood

Amendment were the only contract provisions relevant to the

reimbursement determination.

31 . These documents set the rates for Cove ntry (and its

network clients such as Zenith), but do not provide definitions

or terms that may have been included in the original ÐModel

Facility Agreement.Ñ

32 . Nonetheless, the Lawnwood Amendment defines the

Ð WorkersÓ Compensation Contract RateÑ as fo llows: Ðthe amount

payable under the terms of this Contract shall be the lesser of

the Contract rate or a 5% discount from the amount payable under

hospital guidelines established under any state law or

regulations pertaining to health care services rende red to

occupationally ill/injured employees.Ñ

33 . Therefore , to make a determination of how much is owed,

findings must be made as to what is the ÐContact rate , Ñ and what

is the amount payable under Ðany state law or regulationsÑ

governing workplace inju ries (State rate) .

34 . Relevant to determin in g the ÐContract rate,Ñ

Paragraph 3 of the MFA Amendm ent provides the following under

ÐRatesÑ:

The current rate reflected on Appendix A to

the Agreement shall be increased by 3% for

inpatient dates of admissio n and/or

outpatient dates of service occurring on and

after October 1, 2014 .

35 . Appendix A contains a table dep icting inpatient rates

for Lawnwood as Ð 35% Discount from HospitalÓs Total Billed

Charges . Ñ (emphasis added).

36 . Because the services were provided after October 2014,

the 35 percent discount reduced by t he three percent discount

results in Lawnwood Ós expected contractual reimbursement rate to

be 68 percent of the ÐHospitalÓs Total Billed Charges , Ñ from any

of CoventryÓs clients, including Z enith. Thus, the applicable

Contract rate is 68 percent of the total bill submitted by

Lawnwood.

37 . Zenith disputes the meaning of ÐHospitalÓs Total Billed

ChargesÑ and argues for application of a ÐreasonablenessÑ

standard to this term. In support of t his assertion, Zenith

offers the following documents which relate to the agreement

between Zenith and Coventry: (1) the WorkersÓ Compensation

Network Services Agreement effective November 1, 2008, (Network

Agreement); (2) Supplement A to the Network Agree ment, titled

ÐNetwork AccessÑ (Supplement A); and (3) the Sixth Amendment to

the Network Agreement executed November 24, 2015 (6th Amendment).

38 . The Network Agreement, Supplement A, and 6th Amendment

are heavily redacted. Regardless, it is clear these documents

classify Zenith as a Ðclient,Ñ who pays Coventry for access to a

discounted rate for medical services with a ÐContract Provider . Ñ

The Contract Provider and Coventry ha ve a separate Ðprovider

agreementÑ setting this discounted rate .

39 . Although , the terms Ðcontract rates,Ñ Ðfee,Ñ and

Ðprovider fee schedule,Ñ are all defined in the Network Agreement

Coventry has with Zenith , the definitions or explanation of these

terms are reda cted . Thus, there is no evidence these terms apply

to the Lawnwood b ill or the rate established between Coventry and

Lawnwood. Similarly, Supplement A defines ÐBillÑ but is also

redacted. Regardless, based on the inclusion of these sections

in the Network Agreement and attachments, Zenith and Coventry

knew how to define special terms. If they intended to give a

special meaning to the term ÐHospitalÓs Total Billed Charges,Ñ

they could have done so.

40 . Section 2.2 of the 6th Amendment states, Ð[Zenith]

agrees that the Contract Rate shall be applied to bills received

from [Lawnwood] and further agrees that no other rates . . .

shall be applied to such bills. Ñ (emphasis added). Again,

without any evidence to the contrary, Ðbills receivedÑ applies to

the Lawnwood bill.

41 . Although Zenith argues the remaining language in

section 2.2 allows it to Ðmodify, edit or otherwise dispute any

bill,Ñ this modification must be done pursuant to the contract

and w orkersÓ c ompensation laws and regulations. As stated

before, the EOBR regulations do not contemplate adjustments to be

base d on the reasonableness or fairness of prices or charges.

More importantly, t here is no basis in the contract provisions or

state law and regulations allowing Zenith to reimburse Lawnwood

in the amount of three times the OPT UM360 amount . As explained

in t he Conclusio ns of Law, the undersigned also can not infer th is

as a basis for modification of the reimbursement amount .

42 . Zenith also cites to section 2.6 of Supplement A to

justify its repricing based on the OPTUM360 results and other

industry - used ben chmark comparison data. That section, titled

ÐBenchmarking Database , Ñ states, ÐIn the event [Zenith] . . .

performs a bill review or repricing function on [LawnwoodÓs]

bills, Zenith shall . . . update at least twice annually and

utilize a nationally accep t ed charge - benchmarking database to

determine the proper percentile of charges in the applicable zip

code as approved by Coventry and Client.Ñ

43 . Granted this section contemplates that benchmark

databases can be used by Zenith in repricing bills, but it speaks

to the proper percentile of charges, not the reasonableness of

the underlying prices or charges. T here was no evidence Coventry

approv ed a Ðproper percentile of chargesÑ as required .

44 . The undersigned finds there is no language in the

redacted versions of the Network Agreement, Sup plement A, or 6th

Amendment that changes ZenithÓs requirement (as CoventryÓs

client) to pay the lesser of (1) 68 percent of the ÐHospitalÓs

Total Billed ChargesÑ or (2) 5 percent less than the rate

provided pursuant t o applicable state laws and regulations.

45 . Finally, Zenith argues that the definition provided in

a Coventry contract with an undisclosed health care provider,

titled ÐWorkersÓ Compensation Product Addendum , Ñ should be used

to determine the meaning of t he term ÐHospitalÓs Total Billed

Charges . Ñ See ZenithÓs PRO, p. 22 - 23 (Ð By implication, these are

all in the same network and use the same contractual

p rovisions. Ñ). This document ( ZenithÓs Exhibit 39) provides

definitions , if applicable, that c ould have been helpful in

addressing ZenithÓs arguments . For example, this document ties

the amount owed by a Coventry client to an Ðallowable amountÑ and

Ðeligible bill charges.Ñ There is no evidence, however, that

ZenithÓs Exhibit 39 was executed by Lawnwood (o r East Florida) ,

or that the provisions in this document were part of any

agreement between Coventry and Lawnwood, or Coventry and Zenith.

As such, the undersigned finds it is not applicable to these

proceedings.

46 . Applying the Contract rate -- 68 perce nt of the

ÐHospitalÓs Total Billed ChargesÑ indicated in the Network

Agreement and attachments -- to the Lawnwood bill would require

Zenith to provide a total amount of $110,859.24 , or an additional

amount of $79,014.54 .

The WorkersÓ Compensation System

47 . The analysis does not stop there. The next step is to

determine how much would be owed at Ða 5% discount from the

amount payable under hospital guidelines established under any

state law or regulation pertaining to health care services

rendered to occu pationally ill/injured employees.Ñ The

undersigned finds this provision refers to the laws and

regulations under FloridaÓs workersÓ c o mpensation system set

forth in c hapter 440 and the DepartmentÓs rules .

48 . In making the d etermination decisions in th is case , the

Department used the Florida WorkersÓ Compensation Reimburs ement

Manual for Hospitals, 2014 Edition, and incorporated by reference

in r ule 69L - 7.501 (HRM) .

49 . The HRM generally provides for reimbursement based on

either a per diem fee or th e amount agreed upon by contract

between the carrier and medical services provider. Under the

section titled ÐReported Charges,Ñ the HRM provides: Ðcharges

for hospital inpatient services shall be reimbursed according to

the Per Diem Fee Schedule provide d in this c hapter or according

to a mutually agreed upon contract reimbursement agreement

between the hospital and the insurer.Ñ HRM at 15 .

50 . ÐPer Diem Ñ is defined as Ð a reimbursement allowance

based on a fixed rate per calendar day which is inclusive of all

services rather than on a charge by charge basis.Ñ HRM at 35.

51 . In certain circumstances when provider bills are in

excess of $59,891.34 , a per diem rate is not used. Rather, the

HRM provides that the reimbursement amou nt is calculated using a

percentage methodology of 75 percent of the billed charges . This

ÐStop - Loss ReimbursementÑ is defined as Ð a reimbursement

methodology based on billed charges once reaching a specified

amount that is used in place of, and not in addition to, per diem

reimb ursement for an inpatient admission to an acute care

hospit al or a trauma center.Ñ HRM at 17 and 35 (emphasis added) .

52 . As explained below, the Stop - Loss methodology conflicts

with section 440.13(12)(a), which specifically prov ides for

establishment of a maximum reimbursement amount (MRA) b ased on a

per diem rate for inpatient hospital care. 5/

53 . Applying the State rate -- the per diem rate set forth in

the HRM -- Lawnwood would receive $3,850.33 per day, except for the

day of discharge, which equals $11, 550.99. HRM at 16.

54 . Applying the five percent discount, as set forth in the

Lawnwood Amendment, to the $11,550.99 amount , the total amount

payable by Zenith to Lawnwood equals $10,973.44 .

55 . Because the State rate is less than the amoun t

calculated using the Contract rate , the undersigned finds Zenith

owed Lawnwood a total rei mbursement amount of $10,973.44, which

is less than the $31,844.70 already paid by Zenith.

CONCLUSIONS OF LAW

I. Jurisdiction

56 . DOAH has jurisdiction over the subject mat ter and of

the parties to this proceeding. §§ 440.13, 120.569 and

120.57(1), Fla. Stat.

57 . Zenith urges the undersigned (and the Department) to

impose a Ð reasonableness Ñ standard to the underlying charges

subject to the contractual formula (68 percent of the ÐHospitalÓs

Total Billed ChargesÑ). It does so because it claims LawnwoodÓs

charges are Ðoutliers,Ñ and that Lawnwood (and oth er hospitals)

are ÐgamingÑ the workersÓ c ompensation system to reach the

$59,891.34 threshold in the HRM in order to quali fy for the

percentage - based Stop - Loss reimbursement formula. The Department

has taken the position that because there is a contract , the

hospital can charge an unlimited rate, price , or bill , for

services to the Florida w orkers Ó c ompensation h ealth care s ystem ,

as long as the parties abide by the terms of their contract.

(Jt. Stip. Facts, ¶¶ 15 and 19).

58 . Zenith asks for a construction of the term Ð HospitalÓs

Total Billed Charges Ñ as used in the Coventry - Lawnwood contract.

But before any court can con strue a term in a contract, there

must be an ambiguity. See Gold Crown Resort Mktg. v. Phillpotts ,

2019 Fla. App. LEXIS 6493, at *4 - 5 ( Fla. 5th DCA Apr. 29, 2019) .

As explained in Gold Crown :

Contracts should be construed to give effect

to the intentions of the parties. Whitl ey v.

Royal Trails Prop. OwnersÓ AssÓ n , 910 So. 2d

381, 383 (Fla. 5th DCA 2005) . When the terms

of a contract are unambiguous, the parties'

intent must be determined from within th e

four corners of the document. In the absence

of a mbiguity, the language itself is the best

evidence of the parties Ó intent and its plain

meaning controls. The canons of construction

cannot be used when the contract is

unambiguous as there is no need for judicial

construction. Antoniazzi v. Wardak , 259 So.

3d 206, 211 (Fla. 3d DCA 2018) . (quotations

and some citations omitted).

59. Here, the relevant contract provisions provide for two

unambiguous alternatives -- the S tat e rate with a five percent

discount or the Contract rate . Additionally, the S tate rate is

less than the C ontract rate , regardless of whether ZenithÓs

amount ($31,844.70) or LawnwoodÓs amount ($163,697.30) is used

for the ÐHospitalÓs Total Billed Charges . Ñ Thus, there is no

need to interpret the cont ract or infer the meaning of this te rm .

60 . To be clear, the undersigned and the Department must

apply the terms agreed to by the carrier and medical provider, as

explained in the FSASC final order :

122. Here, Respondent plainly has statutory

authority to resolve reimbursement disputes,

and indeed, is given exclusive jurisdiction

to decide any matters involving

reimbursement. § 440.13(11)(c), Fla. Stat.

Just as JCCs have the authority to construe

contracts in carrying out their statutory

authority under the workers' compensation

system, so too, Respondent has the authority

to construe contracts to determine

reimbursement terms, in order to carry out

its statutory duty to determine whether a

carrier improperly adjusted or denied payment

and order prompt payment when a carrier has

underpaid . (emphasis added) .

Fla. Society of Ambulatory Surgical Center s , Inc. v. Dept. of

Fin. Servs ., Case No. 17 - 3025RP, 2017 Fla. Div. Adm. Hear. LE XIS

705, at *80 - 81 ( Fla. DOAH Nov. 30, 2017)

61 . The authority, however, is not limitless. Rather, just

as Ð a JCC is not a court of general jurisdiction, and cannot

reform contracts or effect a remedy not provided for in chapter

440,Ñ Bend v. Shamrock Services , 59 So. 3d 153, 156 (Fla. 1st DCA

2011) (internal citations omitted), the undersigned cann ot reform

the contract or impose a standard that has not been agreed to by

the parties prov ided for in c hapter 440.

62 . Therefore, the undersigned declines to apply the canons

of construction to determine what was intended by the parties or

infer a ÐreasonablenessÑ st andard to the amount billed by

Lawnwood.

63 . Zenith also argues there is a reasonableness standard

fo r health care costs imposed by c hapter 440. See Pet Ór . PRO,

p. 58 (Ð Sections 440.015 and 440.13(12), Fla. Stat., mandate that

each and every medical p ayment must be defensible as a reasonable

and adequate cost to the system Ñ . ) It also argues the carrier

has the right, if not the duty, to challenge the reas onableness

of payments, citing section 440.13(6) ; and Catron Beverages, Inc.

v. Mavnard , 395 So. 2 d 261, 262 (Fla. 1 st DCA 1981). See PetÓ r

PRO p. 47. These references, however, do not support ZenithÓs

position.

64 . First, s ection 440.015 does mention costs, but only in

the context of Ðcost to the employerÑ and the Ðcost - effect ive

delivery of paym ents.Ñ There is no reference to health care

costs or reasonable costs for treatment and services.

65 . Section 440.13 also address es reimbursement fees and

charges, but directs a three - member panel t o address what is

reasonable:

Reimbursement for all fee s and other charges

for such treatment . . . by any hospital . .

. must not exceed the amounts provided by

the uniform schedule of maximum reimbursement

allowances as determined by the panel or as

otherwise provided in this section . . . .

In determining the uniform schedule, the

panel shall first approve the data which it

finds representative of prevailing charges in

the state for similar treatment, care, and

attendance of injured pers ons. Each health

care provider . . . shall maintain records

verifyin g their usual charges. In

establishing the uniform schedule of maximum

reimbursement allowances, the panel must

consider :

1. The levels of reimbursement for similar

treatment, care, and attendance made by other

health care programs or third - party

provid ers;

2. The impact upon cost to employers for

providing a level of reimbursement for

treatment, care, and attendance which will

ensure the availability of treatment, care,

and attendance required by injured workers;

3. The financial impact of the reimb ursement

allowances upon health care providers and

health care facilities, including trauma

centers as defined in s. 395.4001, and its

effect upon their ability to make available

to injured workers such medically necessary

remedial treatment, care, and att endance.

The uniform schedule of maximum reimbursement

allowances must be reasonable , must promote

health care cost containment and efficiency

with respect to the workersÓ compensation

health care delivery system, and must be

sufficient to ensure availabi lity of such

medically necessary remedial treatment, care,

and attendance to injured workers; and

4. The most recent average maximum allowable

rate of increase for hospitals determined by

the Health Care Board under chapter 408.

§ 440.13(12)(d) , Fla. St at. (emphasis added) . Nonetheless,

section 440.13(12) (a) provides that an individual hospital can set

its own reimbursement amount by agreement :

An individual physician, hospital, ambulatory

surgical center, pain program, or work -

hardening program shall b e reimbursed either

the agreed - upon contract price or the maximum

reimbursement allowance in the appropriate

schedule.

§ 440.13(12)(a), Fla. Stat. (emphasis added).

6 6 . Section 440.13(6) also does not address the

ÐreasonablenessÑ of medical cost, but ra ther is limited to the

identification of Ð overutilization and billing errors.Ñ

67 . Finally, Catron actually supports the conclusion that

the Legislature knows how to impose a Ðreasona blenessÑ standard

if that was its intent. Notably, the Catron court ul timately

found the carrierÓs challenge was frivolous because the charges

for the prescription medication were Ðcustomary and reasonable in

the commun ityÑ as required by the statute in effect at that time,

which provided:

All fees and other charges for tr eatment or

services shall be limited to such charges as

prevail in the community for similar

treatment of injured persons of like standard

of living and shall be subject to rules

adopted by the division, which shall adopt

schedules of maximum charges for s uch

treatment of services. An individual health

care provider shall be paid either his usual

and customary charge for a treatment or

service or the maximum charge, whichever is

less. A hospital shall be paid the lowest

charge currently assessed for such treatment

or service in the community in which the

hospital is located.

§ 440.13(3)(a), Fla. Stat. (1979) (found at https://

fall.fsulawrc.com/collection/FlaStat/FlaStat1979/vol2/FlaStat1979

v2_OCR_Par t18.pdf.). This language is no longer found in the

st atute.

6 8 . If Zenith and Lawnwood had no agreement, the

reimbursement would have been subject to the MRA set by the

three - member panel pursuant to section 440.13(12), which states

that the Ð[t]he maximum reimbursement allowances for inpatient

hospital c are shall be based on a schedule of per diem rates, to

be approved by the three - member panel.Ñ § 440.13(12)(a), Fla.

Stat.

6 9 . A review of subsection (12) of the current statute also

indicates the Legislature knows how to impose a standard for what

shou ld be considered reasonable medical costs and charges, but

chose not to do so for inpatient care reimbursement. For

example, for outpatient care , the statute provides: Ð A ll

compensable charges for hospital outpatient care shall be

reimbursed at 75 percen t of usual and customary charges , except

as otherwise provided by this subsection. Ñ § 440.13(12)(a), Fla.

Stat. (emphasis added).

70 . For drug costs, the Legislature is even more precise ,

and allows parties to negotiate reimbursement at the fee schedule

amount unless there is a contract provision allowing a lesser

amount :

As to reimbursement for a prescription

medication, the reimbursement amount for a

prescription shall be the average wholesale

price plus $4.18 for the dispensing fee. For

repackaged or relabeled prescription

medications dispensed by a dispensing

practitioner as provided in s. 465.0276, the

fee schedule for reimbursement shall be

112.5 percent of the average wholesale price,

plus $8.00 for the dispensing fee. For

purposes of this subse ction, the average

wholesale price shall be calculated by

multiplying the number of units dispensed

times the per - unit average wholesale price

set by the original manufacturer of the

underlying drug dispensed by the

practitioner, based upon the published

m anufacturerÓs average wholesale price

published in the Medi - Span Master Drug

Database as of the date of dispensing. . . .

Fees for pharmaceuticals and pharmaceutical

services shall be reimbursable at the

applicable fee schedule amount except where

the empl oyer or carrier, or a service

company, third party administrator, or any

entity acting on behalf of the employer or

carrier directly contracts with the provider

seeking reimbursement for a lower amount .

§ 440.13 (12)(c ), Fla. Stat. (emphasis added). Unlik e section

440.13(12)(d), cited above, which allows a hospital to accept a

higher or lower rate than that set by the three - member panel, for

drug reimbursement purposes , the hospital must accept t he lower

amount between the fee schedule rate and the contrac t rate.

7 1 . The Legislature has also imposed a Ð reasonableness Ñ

requirement to other items listed in section 440.13, such as time

limits fo r providing medical treatment, section 440.13(2)(c);

access to medical information, section 440.13(4)(c); timing of

independent medical examina tions, section 440.13(5)(c);

attorneyÓs fees, section 440.13(7)(f)3 .; and defining the

elements of necessary medical care, section 440.13(15)(c).

7 2 . Again, had the Legislature wanted to set a

Ð reasonableness Ñ standard for in patient hospital charges, it

could have cited to the numerous sources that Petitioner urges

the undersigned to consider. Instead, it directed the three -

member panel t o determine what was reasonable, and told the panel

what to consider in setting these rat es. § 440.13(12)(d) , Fla.

Stat .

7 3 . Zenith and Lawnwood elected not to be bound by what the

three - member panel deemed to be reasonable, but rather entered

into its own agreement regarding medical costs and payment.

Notably, ZenithÓs contract with Coven try defined ÐbillÑ (although

it was redacted) and CoventryÓs contract with another medical

provider contained a definition of ÐEligible Billed ChargeÑ

( ZenithÓs Exhibit 39). Had Zenith wanted a definition of the

ÐHospitalÓs Total Billed Char gesÑ to be inc luded in its

agreement, it could have done so. Se e generally Churchville v.

GACS Inc. , 973 So. 2d 1212, 1216 (Fla. 1st DCA 2008) (noting

c ourts are Ðunable to rewrite the clear and unambiguous terms of

a contract . . . even when the contractual terms bind a party to

a seemingly harsh bargain[.]Ñ (internal citations omitted) ) .

7 4 . As such, the undersigned has no jurisdiction or

authority to impose a ÐreasonablenessÑ standard on the charges

submitted by Lawnwood, especially where the Legislature and the

par ties to the contract have not done so. 6/

The Stop - Loss Formula Contravenes S ection 440.13(12)(a)

75 . As noted above, the Department arrived at the amount

owed by Zenith in the previous determinations b y applying the

Stop - Loss method , which applies a perce ntage formula to determine

the reimbursement amount for inpatient care where the charges

meet or exceed $59,891.34. Similarly, in analyzing which formula

to a pply (the c ontractual 68 percent or the statutory allowable

amount) for the Third Determination, the Department applied the

Stop - Loss formula to the charges billed by Lawnwood , and found

the 68 percent rate applied . Zenith argues the use of the Stop -

Loss formula contravenes the statute and is an invalid exercise

of legislative authority.

76 . An ex i sting rule is an invalid exercise of delegated

legislative authority if the rule Ðenlarges, modifies, or

contravenes the specific provisions of law implemented .Ñ

§ 120.52(8)(c), Fla. Stat. To determine if a rule contravenes

the implementing statutory au thority, both the statute and rule

must be reviewed to assess whether the rule gives effect to the

implementing law and whether the rule interprets the law's

specific powers and duties. See Bd. of Trs. of Int. Impust

Fund v. Day Cruise Ass'n , 794 So. 2d 696, 704 (Fla. 1st DCA

2001).

7 7 . The rule at issue is a portion of r ule 69L - 7.020 and is

found in c hapter 5 of the HRM. It states :

Exceptions to Per Diem Before calculating the amount of

reimbursement for inpatient

services according to this

Chapter , charges for surgical

implant(s) shall be separated

out from the total gross charges

for which reimbursement is

requested. If the Total Gross

Charge After Implant Carve - Out

is over $59,891.34 reimbursement

shall be determined according to

the Stop - Loss R eimbursement

method.

Stop - Loss Reimbursement If the Total Gross Charge After

Implant Carve - Out exceeds

$59,891.34, the hospital shall

be reimbursed seventy - five

percent (75%) of the Total

Gross Charge After Implant

Carve - Out, except as otherwise

provided in this Manual.

HRM at 17.

78 . Section 440.13, however, only allows a per diem

methodology. It provides in relevant part:

The maximum reimbursement allowances for

inpatient hospital care shall be based on a

schedule of per diem rates to be approved by

t he three - member panel no later than March 1,

1994, to be used in conjunction with a pre -

certification manual as determined by the

Department, including maximum hours in which

an outpatient may remain in observation

status, which shall not exceed 23 hours.

(emphasis added).

§ 440.13(12)(a) , Fla. Stat . 7/

7 9 . Here, the statu t e requires a per diem rate , and there

is no statutory language allowing an exception to using a per

diem formula for inpatient care reimbursements . Where there is a

conflict between a statute and an administrative rule , the

s tatute takes precedence. See State of Fla., DepÓ t of Ins . v.

Ins . Servs. Off . , 434 So. 2d 908 (Fla. 1st DCA 1993); One Beacon

Ins. v. Ag . for Health Care Admin . , 958 So. 2d 1127 (Fla. 1st DCA

2007).

80 . In So uthern Baptist Hospital of Florida, et. al. v.

Ag ency for Health Care Admin istration , Case No. 1D17 - 2027 , slip.

op. (Fla. 1 st DCA April 26, 2019), the court addressed a similar

issue related to the validity of existing and proposed rules

setting forth meth odologies related to Medicaid outpatient

services. T he petitioner hospitals in Southern Baptist , argued

the administrative rules were invalid exercises of delegated

legislative authority. The court noted that no deference was to

be given to the state age ncy as to the validity of the rule. Id.

at 34. Even if deference was given, Ð[b ] ased on the cl e ar and

unambiguous language of the st a tu t e, the Agency was required to

adopt a rule setting forth the methodology by which it would

reimburse Medicaid provider s. Ñ Id. The court concluded that

both the existing and proposed rules were invalid under section

120.52(8)(c) , because they did not implement the methodology

required by the statute. Id. at 35 - 37.

8 1 . In this case, b ecause the Department adopted a

meth odology other than a per diem formula , t he Stop - Loss formula

con travenes section 440.13(12)(a), and is therefore invalid.

8 2 . Section 120.57(1)(e)1. prohibits the undersigned from

utilizing a rule that is an invalid exercise of delegated

legislative autho rity:

An agency or an administrative law judge may

not base agency action that determines the

substantial interests of a party on . . . a

rule that is an invalid exercise of delegated

legislative authority. This subparagraph

does not preclude application of valid

adopted rules and applicable provisions of

law to the facts.

83 . Because the Stop - Loss formula contravenes the

implementing statuteÓs per diem requirement, neither the

undersigned nor the Department can calculate the final

reimbursement amount u sing this formula. See also Bloch Bros.

Corp. v. Dep Ó t of Bus. Reg. , 321 So. 2d 447, 448 (Fla. 2d DCA

1975)(noting when Legislature mandates an administrative power be

exercised one way, it cannot be done another way) . T o the extent

the Stop - Loss amount is calculated using a percentage formula , it

must give way to the clear requirements of the statute providing

only for a per diem formula . Willette v. Air Prods. , 700 So. 2d

397, 399 (Fla. 1st DCA 1997) (finding where admin istrative rule

conflicted with c h apter 440, Florida Statutes, the statute

controlled; noting Ð[w] e reject the DepartmentÓ s contention that

a court must give an administrative rule effect, unless it has

been invalidated in proceedings under sect ion 120.56, even if the

rule is unmistakably at odds with clear statutory language .Ñ)

84 . The only amount allowed by state law and regulations is

the per diem amount in the HRM.

Burden of Proof

8 5 . Although section 440.13(7) does not directly address

the burden of proof, the general rule is that Ð the burden of

proof, apart from statute, is on the party asserting the

affirmative of an issue before an administrative tribunal.Ñ

Balino v. DepÓt of H ealth & R ehab. S ervs. , 348 So. 2d 349, 350

(Fla. 1st DCA 1977).

86 . The burden of proof for Ð[f]indings of fact shall be

based upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute, and shall be based exclusively on the

evidence of record and on matters officially recognized.Ñ

§ 120.57(1)(j), Fla. Stat. Therefore, Zenith has the burden of

proving it made a proper adjustment of payment to LawnwoodÓ s

medical bill covering the applicable dates of service.

87 . Similarly, for an existing rule, the petitioner has the

burden of prov ing by a preponderance of the evidence the existing

rule is an invalid exercise of delegated legislated authority.

§ 120.56(3)(a); So. Baptist Hosp. at 31.

Conclusion

88 . ZenithÓs adjustment was not based on the contractual

language, nor was it based o n the statutory amount. Therefore,

it did not meet its burden proving it made a proper adjustment.

T he amount it paid to Lawnwood , $31,844.70, wa s based on an

incorrect adjustment. A correct adjustment, however, does not

require additional payment for r eimbursement.

89 . Zenith did meet its burden of showing the Stop - Loss

formula is an invalid exercise of delegated legislative

authority. Thus, the Department erred in using this formula to

determin e the lower amount between the contract amount and the

am ount allowable under the Wo rkersÓ Compensation regulations.

T he $110,859.24 it calculated as the ÐTotal Correct Reimbursement

AmountÑ in the Third Determination is impermissibly based on an

invalid rule .

90 . Based on the contractual language (Ðthe amount payable

under the terms of this Contract shall be the lesser of the

Contract rate or a 5% discount from the amount payable under

hospital guidelines established under any state law or

regulations pertaining to health care services rendered to

occupational ly ill/injured employeesÑ (emphasis added) ) , and

applying the statutor ily allowable per diem rate, a correct

adjustment requires a total reimbursement of $10,973.44.

9 1 . Because Zenith has paid more than $10, 973.44, there are

no grounds for granting Lawnw oodÓs Petition for Resolution for

Reimbursement Dispute or for determining that Law n wood is

entitled to additional payment. 8 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Financial Services,

Division of Workers' Compensat ion, enter a final order dismissing

the petition of Lawnwood Regional Medical Center for resolution

of a reimbursement dispute.

DONE AND ENTERED this 8 th day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with t he Clerk of the

Division of Administrative Hearings

this 8 th day of May , 2019 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes and Florida Administrative Code are to the 2018 versions.

See Butler v. Bay Ctr. /Chubb Ins . Co. , 947 So. 2d 570, 572 (Fla.

1st DCA 2006) (procedural changes to law apply without regard to

date of claimantÓs accident); see also Avalon C tr . v. Hardaway ,

967 So. 2d 268, 271 (Fla. 1st DCA 2007) (section 440.13, Florida

Statutes, is procedural in nature) .

2/ The Department Ó s original, Amended, and Second Amended

Reimbursement Dispute Determinat ions were calculated using the

Stop - Loss formula in Florida WorkersÓ Compensation Reimbursement

Manual for Hospitals , Chapter 5 , i ncorporated by reference in

Flor ida Administrative Code R ule 69L - 7.501 (Stop - Loss formula) .

The validity and applicability of this rule is discussed in depth

in the Conclusions of Law.

3/ At the conclusion of the final hearing, per the parties

agreem ent, exhibits that had been marked and admitted during the

hearing were returned to the parties for redaction of medical and

other confidential information.

4/ The undersigned must accept the parties Ó stipulation of facts,

absent a showing of fraud, misrepresentation , or mistake. S ee

D elgado v. Ag. for Health Care Admin. , 237 So. 2d 3d 432, 436 - 37

(Fla. 1st DCA 2018).

5/ The Florida WorkersÓ Compensation Health Care Provide r

Reimbursement Manual defines Ð Maximum Re imbursement AllowanceÑ

as:

a. Maximum Reimbursement Allowance (MRA)

means the specifically listed dollar amount

in the scheduled adopted by the three - member

panel for reimbursement of medical service(s)

rendered to an injured emplo yee by a health

care provider.

6/ Zenith also urges the undersigned to require the Departm ent to

conduct an investigation into LawnwoodÓs pricing practices.

A lthough the parties stipulated to numerous facts regarding the

Department Ós jurisdiction to investigate whether health care

providers and carrie rs are each complying with the workersÓ

c om pensation l aw s and the rules ( Jt. Stip. Fact, ¶ ¶ 2 - 5 ) ,

section 440.13(11) does not provide any means of forcing the

Department to conduct an investigation or audit. Therefore, even

if Zenith has a valid claim that Lawnwood (and other hospitals)

were en gaging in unreasonable pricing, the undersigned has no

jurisdiction or authority to force the Department to use its

auditing powers.

Zenith also tangentially raised arguments under the Florida

Deceptive and Unfair Trade Practices Act (FDUTPA), sectio ns

501.201 - 501.213, Florida Statutes. FDUTPA was enacted to protect

the public and businesses, such as Zenith, from Ðunfair trade

practices , Ñ which is defined as that which Ðoffends established

public policy and . . . is immoral, unethical, oppressive,

un scrupulous or substantially injurious to consumers . Ñ Stewart

Ag., Inc. v. Arrigo Enters. , 44 Fla. L. Weekly D633 (Fla. 4th DCA

March 6, 2019). This includes fraudulent pricing practices.

E.g. , In re Vitamins Antitrust Litig. , 2000 U.S. Dist. LEXIS 7397

(D.D.C. May 9, 2000) (holding FDTPA allowed claims by indirect

purchasers for price - fixing since its primary policy goal was to

protect the consuming public); Fed. Trade CommÓ n v. Mylan Lab s. ,

Inc. , 99 F. Supp. 2d 1 (D.D.C. 1999) (allowing restitution as a

remedy under FDUTPA for allegation of excessive pricing for

prescription drugs through illegal licensing agreements). The

undersigned, however, has no authority to evaluate an FDUTPA

claim in these proceedings.

7/ The undersigned takes official recogni tion of proposed

legislation by the Florida House that would have amend ed section

440.13(12) and would have allow ed the use of a Stop - Loss formula

for reimbursement purposes . See CS/HB 1399 , § 2 ( 2019)

( in definitely postponed and withdrawn from considerat ion on

Friday, May 3, 2019 ; striking the per diem requirement in section

440.13(12)(a), and adding a subsection , 440.13(12)(a)7, which

states: ÐMaximum reimbursement for inpatient hospital care shall

be based on a schedule of per diem rates, subject to a s top - loss

amou nt, approved by the panel Ñ ) . T he fact that an amendment to

the statute is proposed to establish a stop - loss amount supports

a finding that the current version of the statute does not

authorize such a formula , and that the Department Ós adoptio n of

the Stop - Loss formula in the HRM exceeded the legislative

authority delegated to it .

8/ Section 440.13(7) does not contemplate an o verpayment by a

carrier, nor could the undersigned find any authority to

recommend a refund to Zenith for the addit ional $ 20,871.26 paid

to Lawnwood. See generally § 440.13(7)(d), Fla. Stat. (Ð 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 emp loyer within 30 days,

subject to the penalties provided in this subsection. Ñ);

§440.13(7)(f)(limiting remedies to health care provider and not

providing remedies for carrier) ; see also Wal - Mart, Inc. v. DepÓt

of Fin. Serv s ., Div. of WorkersÓ Comp. , Case N o. 15 - 4303 ( Fla.

DOAH Feb 19, 2016; Fla. DFS May 24, 2016) (finding in

overutilization reimbursement case where petitioner had already

made payment no refund was available; Ð PetitionersÓ remorse at

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

overutilization of services, however justified, does not of

itself give rise to a remedy beyond those offered by the statute.

DOAH does not have authority to fashion equitable remedies. See

§ 26.012, Fla. Stat. Ñ).

COPIES FURNISHED:

Tabitha G. Harn age, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Ralph Paul Douglas, Esquire

McConnaughhay, Coonrod, Pope,

Weaver & Stern, P.A.

Suite 200

1709 Hermitage Boulevard

Tallahassee, Florida 32308

(eSe rved)

Thomas Nemecek, Esquire

Department of Financial Services

Division of Workers' Compensation

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 03 90

(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 that

will issue the Final Order in this case.