19-002653 Luis Aponte, M.D. vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Friday, October 4, 2019.

Summary: Petitioner failed to prove that petitions for resolution of reimbursement disputes in two separate cases met the requirements to be considered on the merits. Petitions in both cases were untimely; recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS APONTE, M.D.,

Petitioner,

vs. Case Nos. 19 - 1517

19 - 2 653

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERS '

COMPENSATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 8, 2019, a disputed - fact evidentiary hearing was

held in these consolidated cases by video teleconference at sites

in Tampa and Tallahassee, Florida, before Elizabeth W. McArthur,

Administrative Law Judge of the Divisio n of Administrative

Hearings (DOAH) .

APPEARANCES

For Petitioner: Luis Aponte, M.D., pro se

Post Office Box 4542

Tampa, Florida 33677

For Respondent: Thomas Nemecek, Esquire

Keith C. Humphrey, Esquire

Department of Financial Services

Division of Workers ' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

STATEMENT OF THE ISSUE

The issue in these consolidated cases is whether two

Petitions for Resolution of Reimbursement Dispute are entitled to

be considered on the merits, or whether, instead, they should be

dismissed.

PRELIMINARY STATEMENT

On February 8, 2019, Luis Aponte, M.D. (Dr. Aponte or

Petitioner) , served a Peti tion for Resolution of Reimbursement

Dispute on the Department of Financial Services, Division of

Workers ' Compensation, Medical Services Section (Department or

Respondent). On February 21, 2019, the Department issued a

Reimbursement Dispute Dismissal, di smiss ing the pe tition as

untimely. Dr. Aponte was informed of his right to request an

administrative hearing to contest the dismissal, and he timely

exercised that right. The matter was transmitted to DOAH, and

assigned Case No. 19 - 1517.

Dr. Aponte serve d another Petition for Resolution of

Reimbursement Dispute on the Department on January 31, 2019,

seeking resolution of different reimbursement disputes. The

Department issued a Notice of Deficiency, and gave Dr. Aponte ten

days to cure the deficiencies. Dr. Aponte timely responded to

the Notice of Deficiency, but the Department took the position

that he did not cure the deficiencies. On March 29, 2019, the

Department issued a Reimbursement Dispute Dismissal, dismissing

the p etition for failure to cure a ll deficiencies. Dr. Aponte

was informed of his right to request an administrative hearing,

and he timely exercised that right. The matter was transmitted

to DOAH and assigned Case No. 19 - 2653.

At the request of the parties, the two cases were

consolidat ed and set f or hearing on August 8, 2019.

At the hearing, Petitioner testified on his own behalf.

Respondent presented the testimony of Marcia Paulk, R.N., and

Stephanie Law, R.N. Respondent ' s Exhibits 1 through 6 1/ were

admitted into evidence without o bjection.

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

August 22, 2019. Respondent timely filed its p roposed

r ecommended o rder, which has been considered in the preparation

of this Recommended Order. As of the date hereof, Petitioner has

n ot filed a p roposed r ecommended o rder.

FINDING S OF FACT

1. The Department is the state agency with exclusive

jurisdiction to resolve reimbursement disputes between health

care providers and carriers under section 440.13(7), Florida

Statutes (2019), 2/ part of the Workers ' Compensation Law.

2. Dr. Aponte is a physician. As such, he is a health care

provider, as defined in section 440.13(1)(g). Dr. Aponte

operates a business called Body Contouring, Inc., at which he

provides medical services to patients, i ncluding injured workers.

3 . Sedgwick Claims Management Services, Indemnity Insurance

Company of North America, The Hartford Medical Bill Processing

Center, and Twin City Fire Insurance Company are carriers, as

defined in section 440.13(1)(c).

4. At is sue in both cases are bills submitted by Dr. Aponte

to one of the referenced carriers for services provided to

injured worker s , which were paid, in part, and adjusted by the

carrier.

5. In each case, Dr. Aponte was notified of the adjustments

to each bi ll by means of an Explanation of Bill Review (EOBR)

from the carrier explaining why his bill was not fully paid.

6. If a health care provider such as Dr. Aponte is

dissatisfied with a carrier ' s adjustment or disallowance of

charges on a bill for services to an injured worker, the

provider ' s recourse is to serve a Petition for Resolution of

Reimbursement Dispute on the Department within 45 days after the

provider receives the EOBR.

7. In both consolidated cases, Dr. Aponte seeks to contest

certain carrier adjustments to bills submitted for services he

rendered to injured workers. The specific adjustments he seeks

to contest are reductions to his charges that were explained in

EOBRs as being made pursuant to a contractual arrangement. Each

EOBR making this adjustment identified a preferred provider

organization (PPO) network -- Coventry Pend and Transmit, or

Coventry P&T -- and each EOBR explained that the PPO reduction was

made pursuant to the terms of Dr. Aponte ' s/Body Contouring,

Inc. ' s contract with Aetna.

8. Dr. Aponte seeks to contest these PPO reductions because

he claims that the contract with Aetna was terminated. The

merits of the reimbursement disputes a re not at issue, however.

The sole issue presented is whether the Department should accept

Dr. A ponte ' s p etitions and proceed to resolve the reimbursement

disputes presented.

Case No. 19 - 1517

9. On May 2, 2018, an injured worker had a 15 - minute

outpatient office visit with Dr. Aponte at Body Contouring, Inc.

10. Dr. Aponte submitted a bill for the 15 - minute

outpatient office visit to the employer ' s carrier. The billed

amount was $125.00.

11. The bill was adjusted by the carrier for two reasons

explained in an EOBR issued on May 11, 2018. The carrier reduced

the charge because it exceeded the fee schedule allowance in the

Florida Workers Compensation Health Care Provider Reimbursement

Manual (Provider Manual). The carrier also reduced the charge by

an additional $25.37, based on a written contractual arrangement.

The EOBR identified the " PPO Net work " as Coventry Pend and

Transmit, or Coventry P&T, and the explanatory notes indicated

that the Coventry P&T PPO reduction was " in accordance with your

Aetna contract. " After the two adjustments, Dr. Aponte was paid

$54.63.

12. The May 11, 2018, EOBR included the notice required by

the Department for carrier EOBR forms. The notice specified that

the health care provider may elect to contest the disallowance or

adjustment of payment under section 440.13(7), and that such an

election must be made by the provider within 45 days of receipt

of the EOBR.

13. Dr. Aponte did not timely serve a Petition for

Resolution of Reimbursement Dispute on the Department to contest

the adjustments in the May 11, 2018, EOBR. Instead, he

communicated directly with the car rier. Ultimately, on

February 6, 2019, Dr. Aponte resubmitted the same bill to the

carrier for the 15 - minute outpatient office visit on May 2, 2018,

with the same $125.00 charge, and asked the carrier to

reconsider.

14. That same day -- February 6, 2019 -- t he carrier issued a

second EOBR. The EOBR indicated that payment of the resubmitted

$125.00 bill was disallowed in its entirety, and gave the

following explanation: " billing error: duplicate bill. "

15. Dr. Aponte prepared a Petition for Resolution of

R eimbursement Dispute on the form required by the Department

(incorporated by reference in a rule), and served it on the

Department on February 8, 2019.

16. Dr. Aponte ' s petition asserted that the EOBR he was

contesting was received on February 6, 2019, wh ich was the date

on which the second EOBR was issued.

17. Dr. Aponte identified a single issue in dispute:

whether the carrier improperly adjusted the charge by applying a

PPO network reduction of $25.37. Dr. Aponte contended that

" there is no contract between Luis Aponte, MD/Body Contouring [,]

Inc. [,] and Coventry. "

18. However, the PPO network adjustment was not made in the

February 6, 2019, EOBR. The adjustment Dr. Aponte wanted to

contest was made in the May 11, 2018, EOBR.

19. Dr. Aponte attache d both the May 11, 2018, EOBR and the

February 6, 2019, EOBR to his petition. He added the following

explanation for attaching the two EOBRs: " A petition for

resolution of reimbursement dispute was previously submitted to

the FL Dept. Financial Services on 07/30/18 initiating this

reimbursement dispute. "

20. The Department reviewed the petition and attachments to

determine if the petition was timely served. Since the 45 - day

window to serve a petition begins to run upon receipt of the

EOBR, the Departme nt has a " computation of time " rule providing

alternative ways for a provider to prove the date of EOBR

receipt. See Fla. Admin. Code R. 69L - 31.008. One way is by

showing a date stamp affixed by the provider to the EOBR on the

date of receipt. Another w ay is through a verifiable login

process. The third way is to show the postmark date on the

envelope in which the EOBR was received, in which case five

calendar days is added to the postmark date to allow for mail

time. If the provider does not utilize o ne of these three

methods to prove the date of receipt, the Department will use the

" default " method in its rule, whereby the EOBR receipt date is

deemed to be five calendar days after the date on which the EOBR

was issued.

21. Dr. Aponte did not utilize one of the three options in

the Department ' s rule, which are set forth in the form petition,

to prove the dates on which he received either EOBR. As noted

above, he completed the petition by giving only the date on which

he received the second EOBR.

22. The Department applied the default method in its rule

to determine the receipt date of the first EOBR, which is the

EOBR that made the PPO reduction adjustment sought to be

challenged. The Department determined that Petitioner was deemed

to have received the first EOBR on May 16, 2018. Accordingly,

the deadline for serving a petition to contest the adjustments in

the May 11, 2018, EOBR was June 30, 2018, 45 calendar days after

May 16, 2018.

23. The Petition for Resolution of Reimbursement Dispute at

iss ue in this case, served on the Department on February 8, 2019,

was more than seven months too late. 3/ Petitioner offered no

evidence or argument to excuse his untimely submittal.

Case No. 19 - 2653

24. Dr. Aponte provided services to an injured worker at

Body Contouring, Inc., on October 10, 2018, and October 31, 2018,

for which Dr. Aponte submitted bills to the employer ' s carrier.

Bill for Services on October 10, 2018

2 5. On October 10, 2018, Dr. Aponte saw the patient for an

outpatient office visit at B ody Contouring, Inc., at which

Dr. Aponte provided prolonged evaluation and management (E&M).

Dr. Aponte ' s charges submitted to the carrier were $450.00 for

the office visit and $220.00 for the prolonged E&M service.

26. An EOBR was issued on November 16 , 2018, adjusting both

charges for two reasons explained in the EOBR.

27. Both charges were reduced because they exceeded the fee

schedule in the Provider Manual. Both charges were further

reduced by a total of $79.91 pursuant to a written contractual

ar rangement. The EOBR explained these adjustments as Coventry

P&T PPO reductions " in accordance with your Aetna contract. "

28. After the adjustments, Dr. Aponte was paid $260.09.

29. The 45 - day deadline to serve a petition on the

Department to contest th e adjustments explained in the

November 16, 2018, EOBR was January 5, 2019 (using the default

methodology to determine the EOBR receipt date in the absence of

any other evidence). Dr. Aponte did not timely serve a Petition

for Resolution of a Reimburseme nt Dispute on the Department to

contest the adjustments in the November 16, 2018, EOBR. Instead,

he communicated directly with the carrier and requested a re -

evaluation of the bill.

30. The carrier issued a second EOBR on December 31, 2018,

disallowing p ayment of both line item charges on the resubmitted

bill. The explanation in the EOBR for disallowing payment was

" billing error: line item service previously billed and

reimbursement decision previously rendered. "

Bill for Services on October 31, 2018

3 1. On October 31, 2018, Dr. Aponte saw the same injured

worker for another outpatient office visit at Body Contouring,

Inc., at which the patient received two injections. Dr. Aponte ' s

charges submitted to the carrier were : $300.00 for the office

visit ; $330.00 for one injection ; and $100.00 for the other

injection.

32. An EOBR was issued on November 21, 2018, adjusting the

office visit charge and disallowing the two injection charges,

for reasons explained in the EOBR.

33. The $300.00 office visit char ge was reduced because it

exceeded the fee schedule allowance in the Provider Manual. The

charge was further reduced by $48.16, pursuant to a written

contractual arrangement. The EOBR explained the latter reduction

as a Coventry P&T PPO reduction, " in ac cordance with your Aetna

contract. " The EOBR also explained that both injection charges

were disallowed because the documentation did not substantiate

that the services billed were rendered. After the adjustments

and the disallowances, Dr. Aponte was pai d $110.84.

34. The 45 - day deadline to serve a petition on the

Department to contest the adjustments or disallowances in the

November 21, 2018, EOBR was January 10, 2019 (using the default

methodology to determine the EOBR receipt date in the absence of

an y other evidence). Dr. Aponte did not timely serve a petition

for resolution of a reimbursement dispute on the Department to

contest the adjustments in the November 21, 2018, EOBR. Instead,

he communicated directly with the carrier and requested a re -

eva luation of the bill.

35. The carrier issued another EOBR on December 27, 2018,

disallowing payment of the resubmitted bill for services rendered

on October 31, 2018. The reason given for disallowing payment as

to each of the three charges on the bill was " billing error:

line item service previously billed and reimbursement decision

previously rendered. " 4/

36. Dr. Aponte prepared a Petition for Resolution of

Reimbursement Dispute on the required form, seeking to contest

the PPO adjustments made to the b ills for services rendered to

the same injured employee on October 10 and 31, 2018. He

attached only the final re - evaluation EOBRs, issued December 31,

2018 (for the bill for services on October 10, 2018), and

December 27, 2018 (for the bill for services on October 31,

2018).

37. Dr. Aponte named the Petitioner as " Luis Aponte/Body

Contouring, Inc. " The instructions on the form specify that the

named Petitioner must be a health care provider as defined in

section 440.13(1)(b).

38. Dr. Aponte gave a si ngle date -- January 7, 2019 -- as the

EOBR receipt date. However, he did not select the method used to

establish the EOBR receipt date, as provided in the form

petition. The form instructs that if the EOBR receipt date is

not established by one of the speci fied methods, then the EOBR

receipt date will be deemed to be five days from the issue date

on the EOBR.

39. Dr. Aponte identified the issue in dispute as the PPO

adjustments applied to the bills. However, neither of the re -

evaluation EOBRs attached to t he petition made any PPO

adjustment.

40. Dr. Aponte identified the disputed amount of the PPO

adjustments as $162.69. That is the sum of the PPO adjustments

made in the November 16, 2018, EOBR ($79.91), the November 21,

2018, EOBR ($48.16), and the Decem ber 7, 2018, EOBR ($34.62) ( see

endnote 4).

41. Dr. Aponte did not attach any of the EOBRs that made

the disputed PPO adjustments, but he did attach a letter that he

identified and explained as follows: " A copy of the contract

termination notice sent to Aetna has been provided. " 5/

42. The Department reviewed the petition for completeness.

The Department evaluator noted that the attached EOBRs were

identified as " Re - evaluation " EOBRs that did not make the

disputed PPO adjustments. However, no timelines s determination

could be made because the EOBRs that explained the PPO

adjustments were not attached.

43. In addition to failing to attach the relevant EOBRs,

the petition was found to also be deficient in several other

respects. The Department identif ied all perceived deficiencies

in a Notice of Deficiency sent to Dr. Aponte by certified mail.

He was instructed to correct all of the deficiencies with in ten

days after his receipt of the notice.

44. Dr. Aponte timely responded, and cured all perceive d

deficiencies except one. The Department had found the petition

deficient because it named as the petitioner " Luis Aponte/Body

Contouring, Inc. " However, the instructions on the form petition

emphasize that the named petitioner had to be a " health care

provider " as defined in section 440. 13(1)(g) . The Notice of

Deficiency required a new form petition curing " Petitioner name

and mailing address. This is the provider name, not the business

name. " The directive is not very clear. It could be interpreted

as describing what is in the petition Dr. Aponte submitted ( " This

is " ), instead of describing what shoul d have been in the

petition.

45. Dr. Aponte ' s transmittal letter, listing the documents

enclosed to cure the deficiencies, states that he provided a

completed petition with the P etitioner 's name and address. The

transmittal letter was signed, with the following typed on two

separate lines below the signature line: " Luis Aponte, MD " and

" Body Contouring, Inc. " The enclosed petition, however, named

t he P etitioner in the same manner as in the original petition:

" Luis Aponte/Body Contouring, Inc. "

46. The undersigned appreciates the Department ' s concern

that a Petition for Resolution of Reimburseme nt Dispute must be

submitted by a " health care provide r " meeting the statutory

definition. But in this instance, the Department was well aware

that the health care provider was Luis Aponte, M.D., as were the

carriers involved in reviewing and adjusting his bills, and

issuing the EOBRs that Dr. Aponte is seek ing to contest. Indeed,

the Department ' s initial decision, set forth in a Reimbursement

Dispute Dismissal , names the P etitioner as " Luis Aponte, M.D. "

47. The Department ' s Reimbursement Dispute Dismissal

recites that Dr. Aponte failed to provide the cura tive

documentation as required in the Notice of Deficiency. At

hearing, the Department, through its evaluator who signed the

Reimbursement Dispute Dismissal, testified that the sole

deficiency not cured by Dr. Aponte was to name a petitioner that

met the definition of a " health care provider. " According to the

Department, Dr. Aponte needed to add " M.D. " after his name on the

petition (as he did in the transmittal letter).

48. The Department ' s evaluator also testified that since

she determined that the p etition had to be dismissed for failure

to cure this deficiency, she did not go on to address the

timeliness issue that could not be determined previously without

the relevant EOBRs.

49. Had the evaluator determined the deficiencies to be

cured, she would have proceeded to ass ess the relevant EOBRs,

which were provided by Dr. Aponte in response to the deficiency

notice. She would have determined that the petition was not

served on the Department within 45 days of receipt of the EOBRs

that explained the co ntested PPO adjustments, and she would have

dismissed the petition as untimely.

50. Based on the Department ' s evidence and an independent

assessment of the facts by which timeliness is determined, the

undersigned finds that Dr. Aponte ' s petition, served o n

February 8, 2019, was not timely. The 45 - day deadlines to serve

petitions contesting the PPO adjustments explained in three

different EOBRs were: January 5, 2019 (for the November 16,

2018, EOBR); January 10, 2019 (for the November 21, 2018, EOBR);

and January 19, 2019 (for the December 7, 2018, EOBR).

Dr. Aponte ' s petition was untimely, and not just by a day or two,

but by at least 20 days. He offered no evidence or argument to

excuse his untimely submittal.

CONCLUSIONS OF LAW

51 . The Division of Ad ministrative Hearings has

jurisdiction over the parties and subject matter, pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

52. At issue in these consolidated cases is whether two

Petitions for Resolution of Reimbursement Dispute are entitle d to

be considered on the merits, or whether, instead, they should be

dismissed.

53. The proposed agency action by the Department, following

its free - form review, was that both petitions should be dismissed

because Dr. Aponte did not meet the threshold re quirements that

must be met before such petitions are entitled to consideration

on the merits.

54. Dr. Aponte timely requested administrative hearings to

contest the Department ' s initial decisions. His position is that

the petitions submitted to the Depa rtment are entitled to

consideration on the merits. Although not articulated in so many

words, he contends that his petitions met the statutory and rule

requirements.

55. As the party asserting the affirmative of the issue,

Dr. Aponte has the burden of p roving by a preponderance of the

evidence that his petitions meet the statutory and rule

requirements that entitle them to consideration on the merits.

See generally Balino v. De p ' t of Health & Rehab. Servs. , 348

So. 2d 349, 350 (Fla. 1st DCA 1977); § 120 .57(1)(j), Fla. Stat.

56. Section 440.13(7)(a) sets forth requirements to

petition the Department to resolve a reimbursement dispute,

providing as follows:

Any health care provider who elects to

contest the disallowance or adjustment of

payment by a carri er under subsection (6)

must, within 45 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 c ertified 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.

57 . Florid a Administrative Code Rule 69L - 7.710(1)(y)

contains the following definition germane to section

440.13(7)(a): "' Explanation of Bill Review ' (EOBR) means the

document used to provide notice of payment or notice of

adjustment, disallowance or denial by a [c arrier]. "

58. Rule 69L - 7.740 addresses the carrier ' s responsibilities

in reviewing provider bills for payment, adjustment,

disallowance, or denial. Paragraph (14) provides that a carrier

" shall notify the health care provider of notice of payment or

not ice of adjustment, disallowance or denial only through an

EOBR. An EOBR shall specifically state that the EOBR constitutes

notice of disallowance or adjustment of payment within the

meaning of subsection 440.13(7), F.S. "

5 9 . The EOBR, therefore, is the " notice of disallowance or

adjustment of payment " referred to in section 440.13(7)(a).

Receipt of the EOBR starts the 45 - day period within which a

health care provider electing to contest adjustments in the EOBR

" must " petition the D epartment to resolve th e dispute.

60 . Rule 69L - 31. 008 addresses computation of time .

Paragraph (1) sets forth the three alternative methods by which a

provider can prove the date of receipt of an EOBR ( received date

stamp on the EOBR, verifiable login process, or EOBR envelope

with postmarked date to which five days will be added for mail

time). Where, as in both cases here, the provider does not prove

EOBR receipt dates using one of the rule's options, the rule

provides that the EOBR is deemed received five calendar days

afte r the date on which the EOBR was issued.

61 . Rule 69L - 31.008 (2) addresses the end point of the 45 -

day time period. It provides : "Petitioning the Department shall

be effectuated upon service of the petition upon the Department. "

Details for establishing the date of service are set forth for

different mode s of transmitting a petition to the Department.

6 2 . Applying the foregoing statutory and rule provisions to

the facts found above, Dr. Aponte failed to prove that his

petitions at issue in these conso lidated cases were timely s erved

on the Department. Instead, the facts establish that Dr. Aponte

did not serve his petitions within 45 days of receiving any of

the EOBRs that made the PPO adjustments he is seeking to d ispute.

63 . That Dr. Aponte chose to pursue resolution of his

disputes directly with the carriers by asking them to reconsider

or re - evaluate his bills does not explain or excuse the

untimeliness of his petitions. The 45 - day window to submit a

petition to the D epartment is mandatory if a pr ovider wants the

Department to resolve a reimbursement dispute regarding a

carrier's adjustments to the provider's bills . Nothing prevented

Dr. Aponte from timely submitting petitions to the D epartment

within 45 days after he received the EOBRs that notif ied him of

the disputed PPO adjustments. He could have filed petitions

while also seeking to resolve the disputes directly with the

carriers. Indeed, the D epartment’s ru le s contemplate this dual

path . Rule 69L - 31.012 provides that after a reimbursement

dispute resolution petition and carrier response have been filed,

t he provider and carrier can stipulate to holding the

reimbursement dispute in abeyance for a specified period of time

" for the parties to seek resolution of their reimbursement

dispute with out the need for a determination by the Department. "

6 4 . Dr. Aponte 's attempt to use subsequent EOBRs making no

changes on reconsideration as springboards for opening up new 45 -

day windows to petition the D epartment must be rejected, because

tha t would r e nder the 45 - day statutory limit meaningless. Any

time a provider failed to timely avail himself of the limited

recourse in 440.13(7), he could manufacture a new 45 - day window

by asking a carrier to reconsider and having the carrier deny the

request.

65 . Instead, the Department’s position is the only

reasonable way to apply the statute as interpreted in Department

rules: I f a provider wants the D epartment to resolve a

reimbursement dispute pursuant to section 440.13(7) , the provider

must serve his petit ion on the D epartment within 45 days of the

provider recei pt of an EOBR that gives notice of the disputed

adjustment or disallowance . Dr. Aponte failed to do so in both

cases.

66 . While the foregoing conclusion is dispositive as to

both cases , the Depart ment's alternative theory for dismissing

Dr. Aponte's petition at issue in Case No. 19 - 2653 , set forth in

its initial decision, is rejected . The petition form provides a

blank for "Petitioner Name" and emphasizes in bold print

underneath the blank: " ( MUS T BE 'Healthcare Provider' as defined

[in the statute]). " Luis Aponte's name was set forth, along with

his business's name, Body Contouring, Inc. Luis Aponte is, in

fact, a health care provider, as defined in the statute. He is,

in fact, a physician. T he Department knew this , and identified

him as such in its initial decision to dismiss the petition . Dr.

Aponte's petition complied with this particular statutory and

rule requirement by providing the name of a petitioner who is a

health care provider.

6 7 . Notably, the petition form does not require that a

na m ed petitioner demonstrate that he, she, or it is a "health

care provider," such as by providing a license number. While

"M.D." after a name is an indicator that the person is a

physician, it is not part of the provider's actual name, which is

what the form requires. Moreover, other types of health care

providers would not self - announce as health care provider s simply

by providing their name s . For example, "health care provider"

includes a healt h care facility, which is defined as "any

hospital licensed under chapter 395 and any health care

institution licensed under chapter 400 or chapter 429."

§ 440.13(f), Fla. Stat. Nursing homes and other licensed health

care facilities may , and often do, have names that sound more

like vacation resorts , hotels, or apartment complexes than like

health care facilit ies .

6 8 . The Department's demand for more than the name of a

petitioner (who is, in fact, a health care provider) might be a

reasonable deman d that could be added via rule amendment

procedures , but it is not currently called for under the

Department's form petition, adopted as a rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final o rder be entered in these

consolidated cases by the Department of Financial Services,

Division of Workers ' Compensation , dismissing as untimely the

Petitions for Resolution of Reimbursement Dispute submitted by

Petitioner, Luis Aponte, M.D.

DONE AND ENTERED this 4th day of October , 2019 , in

Tallahassee, Leon County, Florida.

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of October , 2019 .

ENDNOTE S

1/ Respondent ' s Exhibits 1 and 2 pertain to Case No. 19 - 1517.

Respondent ' s Exhibits 3 through 6 pertain to Case No. 19 - 2653.

2/ References to Florida Statutes are to the 2019 codification

and references to Department rules are to the current versions,

unless otherwise noted. The relevant statute and rules in effect

when Dr . Aponte ' s petitions were submitted and addressed by the

Department remain unchanged.

3/ At the hearing, Dr. Aponte explained the reference in his

petition to an earlier petition previously submitted to the

Department on July 30, 2018. Although the un derlying facts were

not established in the record, apparently Dr. Aponte sent a

letter or petition to the Department to dispute the May 11, 2018,

EOBR. Dr. Aponte admitted that he did not follow the

instructions in the EOBR ' s notice stating that he had to submit

his dispute within 45 days after receipt of the EOBR. Instead,

Dr. Aponte admitted that he did not attempt to dispute the

adjustment until after he received the check, which he claims was

not issued until June 14, 2018. Assuming he did not receiv e the

check until on or a bout June 19, 2018 , he still had over ten days

of the 45 - day period remaining to submit a petition contesting

the EOBR ' s adjustment. Instead, he apparently waited until

July 30, 2018, to submit his dispute to the Department.

D r. Aponte testified that he received a Reimbursement

Dispute Dismissal in August 2018, dismissing his July 30, 2018,

submittal as untimely. Dr. Aponte admitted that, unlike in these

two consolidated cases, he did not ask for an administrative

hearing to c ontest the dismissal. Therefore, even if the

underlying facts were established in this record, the dismissal

of his prior attempt to contest the May 11, 2018, EOBR is final

and not at issue in this case. Regardless, if Dr. Aponte were to

argue in this ca se that a petition for resolution of

reimbursement dispute could be considered timely if filed 75 days

after receipt of the EOBR that explains the adjustments the

provider wants to dispute, the undersigned would have to reject

that argument as contrary to the plain language of the statute

and implementing rules. The window to contest a carrier ' s

adjustment to a bill is within 45 days after receipt of the EOBR

explaining the adjustments, not within 45 days after receipt of

the check.

4/ the December 27, 2018, EOBR was the third EOBR It appears that

issued with respect to the bill for services rendered October 31,

2018. An interim re - evaluation was conducted based on additional

documentation submitted by Dr. Aponte to support the charges for

two injectio ns. An EOBR was issued on December 7, 2018. The

EOBR document in evidence is blurry ( see Pet. Ex. 5 at Bates

p. 047), but it appears that the carrier reconsidered and adjusted payment on the two injection charges, rather than

disallowing payment entirely . Although not all of the numbers

can be discerned, the PPO adjustment numbers are legible, and

those are the adjustments that Dr. Aponte is attempting to

dispute. The carrier reduced one injection charge by $34.22 and

the other injection charge by $0.40 as the PPO adjustments in

accordance with the Aetna contract. The 45 - day period to serve a

petition on the Department to dispute these adjustments would

have ended on January 19, 2019, applying the default methodology

to prove the EOBR receipt date in th e absence of any other

evidence.

5/ As previously noted, the merits of Dr. Aponte ' s claim that no

PPO reductions should have been applied are not at issue in this

proceeding. However, the undersigned notes that the August 30,

2018, letter in evidence, from Luis Aponte, MD, Body Contouring,

Inc., to Aetna, Inc., states: " Consider this communication the

notice of my immediate termination as a contract provider with

Aetna becoming effective today in view that Body Contouring [ , ]

Inc. ' s [,] practice has clos ed. Please respond by sending through

certified mail the confirmation of the termination of the

agreement between Body Contouring [,] Inc. [,] and Aetna. " Pet.

Ex. 5 at Bates p. 042. But Dr. Aponte continued to bill for

services provided through his pract ice, Body Contouring, Inc.;

all of the EOBRs at issue in these cases identify both Dr. Aponte

and Body Contouring, Inc.; and Dr. Aponte named as the p etitioner

in the two Petitions for Resolution of Reimbursement Dispute at

issue in these cases " Luis Apont e, MD/Body Contouring [,] Inc. "

(Case No. 19 - 1517) and " Luis Aponte/Body Contouring [,] Inc. "

(Case No. 19 - 2653). It is unknown if Dr. Aponte ever received

the requested confirmation from Aetna, and it is unknown if his

notice would have been effective to t erminate the contract, given

that the premise of the notice was contradicted by the subsequent

continued practice and billing in the name of Body Contouring,

Inc. These issues would have to be considered based on evidence

not offered here, such as the con tract itself, if the merits of

Dr. Aponte ' s reimbursement disputes were presented for

determination.

COPIES FURNISHED:

Luis Aponte , M.D.

Post Office Box 4542 Tampa, Florida 33677 (eServed)

Thomas Nemecek, Esquire

Department of Financial Services

Div ision of Workers ' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Keith C. Humphrey, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Julie Jones, CP, FRP, Agency C lerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 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 that

will issue the Final Order in this case.