97-000693RP Florida Society Of Anesthesiologists And Robert A. Guskiewicz vs. Department Of Labor And Employment Security, Division Of Workers` Compensation Status: Closed DOAH Final Order on Tuesday, June 24, 1997.

Summary: Rule 38F-7.020 is invalid pursuant to Section 120.52(8) (1996 Suppl.) challenge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA SOCIETY OF )

ANESTHESIOLOGISTS and )

ROBERT A. GUSKIEWICZ, M.D., )

)

Petitioners, )

)

)

vs. ) Case No. 97-0693RP

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, DIVISION )

OF WORKERS' COMPENSATION, )

)

Respondent, )

)

and )

)

INPHYNET MEDICAL MANAGEMENT, )

INC., FLORIDA PHYSICAL THERAPY )

ASSOCIATION, FLORIDA )

ASSOCIATION OF OCCUPATIONAL AND )

ENVIRONMENTAL MEDICINE; and )

FLORIDA SOCIETY OF PHYSICAL )

MEDICINE AND REHABILITATION, )

)

Intervenors. )

_______________________________________)

FINAL ORDER

This cause came on for consideration pursuant to the

parties' stipulation as to standing and facts as more fully set

forth in the Preliminary Statement.

APPEARANCES

For Petitioner, Florida Society of Anesthesiologists and

Robert A. Guskiewicz, M.D.:

J. Michael Huey, Esquire

William E. Williams, Esquire

Huey, Guilday and Tucker, P.A.

High Point Center, Suite 900

106 East College Avenue

Tallahassee, Florida 32302

For Respondent, Department of Labor and Employment

Security:

Michael G. Moore, Senior Attorney

Department of Labor and Employment Security

Hartman Building, Suite 307

2012 Capital Circle, Southeast

Tallahassee, Florida 32399 -2189

For Intervenor, InPhynet Medical Management, Inc.:

Eric B. Tilton, Esquire

Gustafson, Tilton, Henning and Metzger,

P.A.

204 South Monroe Street, Suite 200

Tallahassee, Florida 32301

For Intervenor, Florida Physical Therapy Association:

Bruce Culpepper, Esquire

Aikerman, Senterfitt and Eidson, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32302

For Intervenor, Florida Association of Occupational and

Environmental Medicine:

Richard E. Johnson, President

Lakeside Industrial Medical

1400 East Bay Drive

Largo, Florida 32461

For Intervenor, Florida Society of Physical Medicine and

Rehabilitation:

Oscar B. De Paz, President

Rehabilitation Medicine Associates, P.A.

4881 Northwest 8th Avenue

Gainesville, Florida 32605

STATEMENT OF THE ISSUE

Whether the Department's proposed amendment of Rule 38F-

7.020, Florida Administrative Code, constitutes an invalid

exercise of its delegated legislative authority under Section

120.52(8), Florida Statutes, [1996 Supp.], or whether the

authority specified in the proposed rule is sufficient for the

Department to adopt the proposed rule?

PRELIMINARY STATEMENT

On January 3, 1997, the Department published in the Florida

Administrative Weekly, Vol. 23, No. 1, notice of its intent to

adopt proposed amendments to Rule 38F -7.020.

On February 10, 1997, Petitioners filed a Petition for

Administrative Determination of Invalidity of a Proposed Rule.

The final hearing was initially set for March 10, 1997.

On February 17, 1997, Intervenor, InPhynet Medical

Management, Inc., filed its Petition to Intervene. On February

20, 1997, the parties filed a Joint Motion for Continuance of

Final Hearing. By Order Granting Intervention and Rescheduling

Hearing, dated February 27, 1997, Administrative Law Judge

William A. Buzzett granted InPhynet's Petition to Intervene, and

the final hearing was rescheduled for March 31, 1997.

On March 4, 1997, the Florida Association of Occupational

and Environmental Medicine and the Florida Society of Physical

Medicine and Rehabilitation filed Petitions to Intervene. On

March 13, 1997, the Florida Physical Therapy Association filed

its Petition to Intervene. On March 21, 1997, Petitioners filed

an unopposed Motion for Continuance of Final Hearing.

By Order of Continuance to Date Certain entered by the

undersigned on March 25, 1997, the final hearing was rescheduled

for April 30 -May 1, 1997. By Order on Intervention, dated March

28, 1997, the pending Petitions to Intervene were granted.

On April 27, 1997, the parties filed a Joint Prehearing

Stipulation agreeing to the standing of Petitioners and all

Intervenors and to all of the facts necessary for a

determination of this matter. The parties also stipulated that

Petitioners have not waived any rights with regard to

constitutional challenges to proposed Rule 38F -7.020.

During a hearing by telephonic conference call on April 29,

1997, the parties agreed to waive oral testimony, to rely upon

the Joint Prehearing Stipulation, and to provide Proposed Final

Orders containing legal argument in support of their respective

positions on or before May 12, 1997. By Order dated May 5,

1997, the hearing scheduled for April 30 -May 1, 1997, was

cancelled; the parties were given until May 12, 1997 to file

proposed final orders; and an aspirational date for the entry of

a Final Order was established as June 11, 1997.

Petitioners Florida Society of Anesthesiologists and Robert

A. Guskiewicz, M.D.; Respondent Department of Labor and

Employment Security; and Florida Physical Therapy Association

timely filed proposed orders. InPhynet Medical Management, Inc.

filed its proposed order on May 13, 1997. The remaining

Intervenors have not filed any proposed orders. Pursuant to the

parties' stipulation and the May 5, 1997 Order, the late -filed

proposal has not been considered.

FINDINGS OF FACT

1. The Florida Society of Anesthesiologists is a

voluntary, nonprofit association comprised of individual

members, each of whom is licensed in the State of Florida to

practice medicine.

2. Petitioner, Robert A. Guskiewicz, M.D., is a licensed

medical doctor in the State of Florida specializing in

anesthesia.

3. Pursuant to Section 440.13(12), Florida Statutes, a

three -member panel is charged with the responsibility of

determining the schedules of maximum reimbursement for physician

treatment of workers' compensation patients.

4. In March 1996, the three -member panel convened and

adopted a resource -based relative value scale ("RBRVS")

reimbursement system, which, on or about January 3, 1997, the

Department published notice of its intent to embody in proposed

Rule 38F -7.020, in Vol. 23, No. 1 of the Florida Administrative

Law Weekly. A copy is attached and incorporated herein by

reference.

5. The proposed Rule lists Sections 440.13(7), 440.13(8),

440.13(11), 440.13(12), 440.13(13), 440.13(14), and 440.591,

Florida Statutes, as specific authority.

6. The proposed Rule implements Sections 440.13(6),

440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), and

440.13(14), Florida Statutes.

7. There are no other facts necessary for determination of

the matter.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.56(2), Florida Statutes [Supp. 1996].

9. All Petitioners and Intervenors have standing herein.

10. Petitioners have not waived any rights with regard to

any constitutional challenges to proposed Rule 38F -7.020.

11. Synopsized, the Petition herein alleged, in pertinent

part: "Pursuant to Section 440.13(12), Florida Statutes, a

three member panel is charged with the responsibility of

determining the schedules of maximum reimbursement for physician

treatment of workers' compensation patients. The Department, by

statute, is responsible for publishing the proposed changes to

Rule 37F 7.020. . . . Anesthesiologists are currently reimbursed

under the provisions of the 1991 Florida Workers' Compensation

Health Care Provider Reimbursement Manual (1991 Manual) adopted

by reference in Rule 38F -7.020, Florida Administrative Code. . .

. In

March 1996, the three -member panel convened to adopt a new

reimbursement schedule and adopted a Florida specific RBRVS

system, with two conversion factors (surgical/nonsurgical) to be

applied to medical procedures. The panel did not reclassify the

anesthesiology codes from the present surgical designation

contained in the Department's existing Rules. . . . The

proposed Rule is intended to amend existing Rule 38F -7.020,

Florida Administrative Code. The proposed Rule replaces the

1991 manual with the Florida Workers' Compensation Health Care

Provider Fee For Service Reimbursement Manual ('1997 Manual')."

12. Subsequently, the clear terms of their stipulation, the

parties limited the facts for consideration and Petitioners

specifically waived any challenges pursuant to Sections

120.52(8)(a), (c), (d), (e), (f), and (g), Florida Statutes.

Due to the parties' stipulation to limited facts and issues, it

is not necessary to address all the original legal allegations

of the Petition, including but not limited to the concept that

the proposed rule in any way modifies or adds to the

three -member panel 's ultimate product. Therefore, the

undersigned assumes, for purposes of this rule challenge, that

the proposed rule does not alter the panel's final 1997 product.

13. Section 440.13(12), Florida Statutes [Supp. 1996], was

formerly codified as Section 440.13(4)(a), Florida Statutes.

Under the 1989 version of Section 440.13(4)(a), the Department

of Labor and Employment Security was granted specific authority

to adopt by rule the maximum reimbursement allowances as

determined by the three -member panel.

A three -member panel is created, consisting

of the Insurance Commissioner and two

members to be appointed by the Governor,

subject to confirmation by the Senate, one

member who, on account of previous vocation,

employment, or affiliation, shall be

classified as a representative of employers,

the other members who, on account of

previous vocation, employment, or

affiliation, shall be classified as a

representative of employees. The panel,

after reviewing recommendations from the

advisory committee, shall annually determine

schedules of maximum reimbursement

allowances for such medically necessary

remedial treatment, care, and attendance.

Reimbursement for all fees and other charges

for such treatment, care, any attendance,

including treatment, care, and attendance

provided by any hospital or other health

care provider, shall not exceed the amounts

provided by the schedules of maximum

reimbursement allowances as determined by

the panel and adopted by rule by the

department . (Emphasis Supplied)

14. In 1990, the Legislature repealed the specific agency

rulemaking authority previously granted under this subsection by

deleting the words "and adopted by rule by the department." See

Chapter 90.201, Section 18, at 930, Laws of Florida.

15. Also in 1990, the Legislature enacted Section 440.591,

Florida Statutes, which granted the agency the "authority to

adopt rules to govern the performance of any programs, duties,

or responsibilities with which it is charged under this

chapter." See, Chapter 90 -201, Section 46, at 992, Laws of

Florida.

16. Read in sari materia, the simultaneous 1990 amendments

would seem to cancel out each other and manifest the

Legislature's intent that the agency should continue to provide

by rule for administering the panel - determined maximum medical

allowances (a/k/a "fee schedules"), including publishing the fee

schedule in manual form.

17. Moreover, Section 440.591, Florida Statutes, relied

upon by the promulgating agency for the proposed rule here

challenged, has not been amended since 1990 and is very broad.

In its expanse, Section 440.591 Florida Statutes, is like many

of the grants of statutory authority which were widely upheld

prior to the October 1, 1996, statutory amendments to Section

120.52, Florida Statutes, [Supp. 1996], which statutes permitted

agencies to promulgate almost any rule reasonably related to the

agency's statutory authority to monitor or to act. See, Charity

v. Florida State University , 680 So. 2d 463 (Flat 1st DCA 1996),

Cortes v. State Board of Regents, 655 So. 2d 132 (Flat 1st DCA

1995), Department of Labor and Employment Security. Div. of

Workers' Compensation v. Bradley , 636 So. 2d 802 (Flat 1st DCA

1994)

18. Indeed, Chapter 440, Florida Statutes, has been

amended in many other ways in 1991, 1992, 1993, and 1996, but

until the massive 1996 amendments to Chapter 120, Section

440.591 would have been sufficient to allow the agency to

promulgate its proposed rule.

19. The 1996 legislative overhaul of Chapter 120 was

preceded by gubernatorial mandates to agencies to reduce their

rules by fifty per cent. See, Fla . Exec . Ord . 95 -74 (February

27, 1995); Fla . Exec . Ord . 95 -256, Section 7 (July 12, 1995).

The 1996 Florida Legislature responded with the same goal. See,

Sections 120.54(1)(f) ("An agency may adopt rules authorized by

law and necessary to the proper implementation of a statute . .

. "); 120.56(2) (petitions challenging a proposed rule must

state the reason the proposed rule "is an invalid exercise of

delegated authority"); 120.52(8) (definition of "invalid

exercise of delegated authority" means action that exceeds "the

powers, functions, and duties delegated by the Legislature.");

and 120.536(2)and (3) (how agencies shall account to the

Legislature for unauthorized rules).

20. Particularly, in 1996, the presumption and burden of

proof as to the validity of proposed rules was shifted by

legislative amendment. Section 120.56(2) provides, in pertinent

part

(2)(a) CHALLENGING PROPOSED RULE, SPECIAL

PROVISIONS . . . The petition shall state

with particularity the objections to the

proposed rule and the reasons that the

proposed rule is an invalid exercise of

delegated legislative authority. The agency

then has the burden to prove that the

proposed rule is not an invalid exercise of

delegated legislative authority as to the

objections raised.

* * *

(c) When any substantially affected person

seeks determination of the invalidity of a

proposed rule pursuant to this section, the

proposed rule is not presumed to be valid or

invalid.

21. Also, today, Section 120.52, Florida Statutes,

[Supp. 1996], provides:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislature authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement, interpret,

or make specific the particular powers and

duties granted by the enabling statute. No

agency shall have authority to adopt a rule

only because it is reasonably related to the

purpose of the enabling legislation and is

not arbitrary and capricious, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than the particular powers

and duties conferred by the same statute.

22. Clearly, the Legislature has amended Section 120.52(8)

Florida Statutes, effective October 1, 1996, to require more

than Section 440.581's general grant of rulemaking authority and

a rule reasonably related to the enabling legislation.

23. Commentators have uniformly noted that the

Legislature, through the foregoing new language, has expressed

its intent to radically restrict the authority of agencies to

adopt rules without specific and detailed legislative authority.

See, e.q., F. Scott Boyd, Legislative Checks on Rulemakina Under

Florida's New APA, 24 Fla. St. U.L. Rev. 309, 341 (1997) (these

four sentences "are potentially the most far -reaching of any in

the 1996 amendments"); Jim Rossi, The 1996 Revised Florida

Administrative Procedure Act: A Survey of Major Provisions

Affecting Florida Agencies, 24 Fla. St. U.L. Rev. 283, 296

(1997) (revisions to the APA seriously limit agency rulemaking

authority through this "remarkable" language that is designed to

radically curtail agency rulemaking authority); DOAH

Administrative Law Judge Linda M. Rigot and Ralph A. DeMeo,

"Florida's 1995 Administrative Procedure Act," 71 Fla. B.J. 12,

14 (March) 1997 (the kinds of rule agencies are permitted to

promulgate are more limited); Wade L. Hopping, Lawrence E.

Sellers, and Kent Wetherell, "Rulemaking Reforms and Nonrule

Policies: A (Catch -22) for State Agencies?," 71 Fla. B.J. 20, 26

(March 1997) ("reforms are intended to ensure that agency policy

choices, whether in rules or no rules policies, are specifically

authorized by the enabling legislation.") (emphasis in the

original); Patrick L. "Booter" Imhof and James Parker Rhea,

"Legislature Oversight", 71 Fla. B.J. 28, 30 (March 1997) ("The

legislature also attempted to improve legislative oversight by

enacting statutory restrictions on agency rulemaking.")

24. Therefore, this instant determination of the validity,

vel non , of proposed Rule 38F -7.020, Florida Administrative

Code, must turn upon the statutory provisions other than Section

440.591 which were listed by the promulgating agency. These are

Sections 440.13(7), (8), (11), (12), (13), and (14).

25. The current Section 440.13(12)(a) [Supp. 1996]

provides, in pertinent part, as follows:

A three -memb er panel is created, . . . The

panel shall determine statewide schedules of

maximum reimbursement allowance for

medically necessary treatment, care, and

attendance provided by physicians, . . .

Annually, the three -member panel shall adopt

schedules of maximum reimbursement

allowances for physicians. . . . An

individual physician, . . . shall be

reimbursed either the usual and customary

charge for treatment, care, and attendance,

the agreed -upon contact price, or the

maximum reimbursement allowance in the

appropriate schedule, whichever is less.

(Emphasis supplied)

26. Petitioners correctly observe that neither in 1996 nor

1997 has Chapter 440 specifically used language which permits

the agency to unilaterally promulgate a schedule of maximum

reimbursement allowances of its own or which permits the agency

to otherwise modify the panel -adopted schedule of maximum

reimbursement allowances via the agency rule adoption process

established in Chapter 120, Florida Statutes. 1 Instead, current

sub -section 440.1 3(12)(a), clearly reserves to the three member

panel the exclusive authority to "adopt" (in this statutory

context meaning to: convene, investigate, deliberate over,

determine, and create) the substantive content of schedules of

maximum reimbursement allowances, and provides that until the

panel annually adopts new schedules, specific old schedules

shall apply.

27. However, the undersigned does not perceive that the

"legislative authority" which may not be exceeded pursuant to

Section 120.52(8)(b) [Supp. 1996] and which must be specifically

pointed out by the agency pursuant to Section 120.54(3)(a)1.,

[Supp. 1996] is somehow restricted to a single statutory sub-

section or paragraph, namely sub -section 440.13(12)(a).

Likewise, although varied arguments by several parties have been

based upon time -honored administrative practice definitions of

the terms "publish", "adopt", "application", and

"interpretation", none of those arguments is persuasive in light

of the hybrid nature of Section 440.13 which authorizes the

three -member panel to adopt (i.e., convene, investigate,

deliberate over, determine, and create) the substantive content

of a fee schedule, but, since the panel is not an agency,

further authorizes the agency to refer to, rely upon, and apply,

on a case -by -case basis, the substantive content developed by

the panel.

28. In sub -section 440.13(12), and throughout Section

440.13 Florida Statutes, the Legislature has specifically

provided that reimbursement of health care providers under

Chapter 440 shall be, and is limited to, either the usual and

customary charge for treatment, care, and attendance, the

agreed upon contract price, or the maximum reimbursement

allowance in the appropriate schedule, whichever is less.

Provision is made in some statutory sub -sections for limiting

reimbursement to just the maximum reimbursement allowances

determined by the three member panel. To that end, the

Legislature has created a statutory scheme of considerable

detail which sets up a methodology or procedure whereby the

agency and all persons operating pursuant to Chapter 440 are

required to refer to, and rely upon, the substantive content of

the panel's fee schedules.

29. Sub -sections 440.13( 7), (8), (11), (12), (13), and

(14), cited by the agency as authority for the proposed rule

challenged herein, impose requirements on fee -paying

employer/insurance carriers and fee -receiving health care

providers, related to billing for health care services for

workers' compensation patients. These sub -sections further

require the agency to monitor billing activities and enforce the

fee schedules so as to curb unnecessary medical procedures and

expenses. Also, the agency is charged with determining the

reasonableness of fees charged by applying the substantive

content of the panel's fee schedules. The agency also is

authorized to resolve disputes between employer/insurance

carriers and health care providers concerning fees charged and

paid, which dispute resolution process of necessity requires

reliance upon the substantive content of the panel's fee

schedules. To resolve such disputes, the agency is called upon

by specific statutory language to interpret and apply the

substantive content of the panel -ado pted maximum medical

allowances and to establish procedural rules for such dispute

resolution.

30. Clearly, the agency has been empowered and authorized

by the statutory scheme to apply the substantive content of the

panel's annual fee schedules to individual situations.

31. Additionally, many of these sub -sections include

specific statutory language authorizing the agency to adopt

rules of a procedural nature for applying, on a case -by -case

basis, the substantive content of the panel's fee schedule.

Section 440.13(7) provides for utilization and reimbursement

disputes and contains a provision charging the Division of

Workers' Compensation with authority to "adopt rules to carry

out this subsection. . . . includ[ing] provisions for

consolidating petitions filed by a petitioner and expanding the

timetable for rendering a determination upon a consolidated

petition." Section 440.13(8), applies to the pattern or

practice of overutilization and empowers the Division to impose

certain delineated penalties for "overutilization or a violation

of this chapter or rules adopted by the division[.]" Section

440.13(11) (a) and (c), empower the Division to investigate

health care providers to ensure compliance with Chapter 440 and

with Division rules, and empowers the Division to monitor and

audit carriers to ensure compliance with the section and with

Division rules. Section 440.13(13), authorizes the Division to

remove from the list of authorized physicians or facilities any

physician or facility found to have engaged in certain

enumerated conduct, including overutilization or violating

Chapter 440 or a Division rule. Section 440.13(14) addresses the

payment of medical fees and prohibits fees charged in excess of

the applicable panel -adopted maximum reimbursement all owances.

32. Indeed, assuming arquendo, but not ruling, that sub-

section 440.13(12) is insufficient by itself to authorize the

agency to interpret and apply the panel's schedules, then sub-

section 440.13(7) clearly provides that the Division must be

guided by the standards and policies set forth in Chapter 440,

including all applicable reimbursement schedules, in rendering

its determination of the respective rights of physicians,

employers, and insurance carriers. Sub -paragraph 440.13(7)(a)

provides for the agency to resolve issues between

employer/insurance carriers and physicians for payment of

charges on behalf of injured employees. Sub -paragraph (c)

requires that the "division must be guided by standards and

policies set forth in this chapter, including all applicable

reimbursement schedules, in rendering its determination."

Sub -paragraph (e) provides that the agency "shall adopt rules to

carry out this subsection."

33. The Legislature has, throughout Section 440.13,

authorized the three -member pan el to "adopt" the substantive

content of a fee schedule and has authorized the agency to refer

to and rely upon that panel -adopted fee schedule's substantive

content in fulfilling the other duties devolved upon the agency

by statute.

34. Therefore, although the parties herein have made

contrary arguments based upon time -honored Chapter 120 and

administrative practice concepts of the terms, "publish" and

"adopt", Chapter 440's hybrid scheme does not lend itself to any

of them in this instance, and they are discounted. As President

Dwight David Eisenhower stated in a campaign speech for his

second term in office, "No platform justifies an abrogation of

common sense." The legislative language is clear that the

three member panel is authorized to "adopt" the substantive

measurement (the fee schedules), and the agency is authorized to

procedurally apply that panel's substantive measurement.

35. Since the parties have limited the facts and

Petitioners have specifically waived their challenge under

Section 120.52(8)(c), based on the proposed rule's allegedly

enlarging, modifying, or contravening specific provisions of the

law implemented, there remains no dispute over what ultimate

product the 1997 three member panel has adopted. Therefore, it

naturally follows that the agency's proposed rule correctly

refers to the discreet and intact fee schedules adopted by the

1997 panel as authorized by law, and the proposed rule then does

no more than give notice to the public that 1997 annual maximum

reimbursement allowances have been adopted by the three -member

panel, which the statute authorizes the panel to do; that the

agency has printed the same panel -adopted 1997 annual maximum

reimbursement allowances in a manual entitled, "Florida Workers'

Compensation Health Care Provider Fee For Service Reimbursement

Manual"; and that, having been adopted by the panel and printed

by the agency, the substantive content of the panel -adopted

maximum reimbursement allowances will henceforth be referred to,

relied upon, and applied by the agency on a case -by -case basis,

as the agency is charged to do by statute.

36. Proposed Rule 38F -7.020, implementing sub -sections

440.13(6), (7), (8), (11), (12), (13) and (14), Florida

Statutes, is authorized by sub -sections 440.13(8), (9), (11),

(12), (13), and (14), and constitutes a valid exercise of the

agency's delegated legislative authority.

ORDER

Upon the foregoing findings of fact and conclusions of law,

it is hereby ORDERED:

Proposed Rule 38F-7.020, Florida Administrative Code, as

published, is valid.

DONE AND ORDERED this 24th day of June, 1997, at

Tallahassee, Leon County, Florida

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of June, 1997.

ENDNOTE

1/ This final order assumes, on the basis of the parties'

stipulation (see Finding of Fact 7 and Conclusions of Law 12 and

35) that, notwithstanding the several titles of documents and

words of art contained in the proposed rule, there is no longer

any issue about whether the agency has enlarged or modified the

panel -determined maximum medical allowances ("RBRVS").

COPIES FURNISHED:

J. Michael Huey, Esquire

William B. Williams, Esquire

Huey, Guilday and Tucker, P.A.

Highpoint Center, Suite 900

106 East College Avenue

Tallahassee, Florida 32302

Michael G. Moore, Esquire

Department of Labor and

Employment Security

Suite 307

2012 Capital Circle, Southeast

Tallahassee, Florida 32399 -0250

Eric B. Tilton, Esquire

204 South Monroe Street, Suite 200

Tallahassee, Florida 32301

Bruce Culpepper, Esquire

Akerman, Senterfitt and Eidson, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32302 -2555

Oscar B. DePaz, President

Rehabilitation Medicine Associates, P.A.

4881 Northwest 8th Avenue

Gainesville, Florida 32605

Richard E. Johnson, President

Lakeside Industrial Medical

1400 East Bay Drive

Largo, Florida 32641

Douglas L. Jamerson, Secretary

Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle, Southeast

Tallahassee, Florida 32399 -2152

Edward A. Dion, General Counsel

Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, Southeast

Tallahassee, Florida 32399

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399 -0250

Carroll Webb, Executive Director

Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399 -1300

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of the notice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the Appellate District where the party resides. The

notice of appeal must be filed within 30 days of rendition of

the order to be reviewed.

EXHIBIT A

Florida Administrative Weekly

Volume 23, Number 1, January 3, 1997

SPECIFIC AUTHORITY: 440.13(7), 440.13(8), 440.13(11)

440.1 3( 1 2), 440.1 3( 1 3), 440.1 3(1 4), 440.591 FS.

LAW IMPLEMENTED: 440.13(6), 440.13(7), 440.13(8),

440.13(11),440.13(12),440.13(13),440.13(14)FS.

IF REQUESTED WITHIN 21 DAYS OF THIS NOTICE, A

HEARING WILL BE HELD AT THE TIME, DATE AND

PLACE SHOWN BELOW:

TIME AND DATE: 2:00 p.m. to 4:00 p.m., Thursday, January 30,

PLACE: Room 302, Hartman Building, 2012 Capital Circle,

S.E., Tallahassee, Florida

THE PERSON TO BE CONTACTED REGARDING THE

PROPOSED RULE IS Donna Reynolds, Registered Nurse

Consultant, Division of Workers' Compensation.

Rehabilitation and Medical Services Unit, 2728 Centerview

Drive, Suite 331, Forrest Building. Tallahassee, FL 32399,

telephone number (904)488 -3431, ext. 180

THE FULL TEXT OF THE PROPOSED RULE IS:

38F -7.020 Florida Workers' Compensation Health Care

Provider Reimbursement Manual.

(1) The 1997 Florida Workers' Compensation Health

Care Provider Fee For Service Reimbursement Manual for

physician and non-physician services, with replacement pages

237, 238 through 240b(dated 12-6-95), and 258.1 through 258.3

(1995 ), is adopted by reference as part of this rule. The

manual contains reimbursement policies and maximum

reimbursement for physician services, non -physician services,

pharmaceutical and medical supplies. The manual contains basic

instructions and information for all providers and insurance

carriers in the preparation and reimbursement of claims for

medical services. The manual is distributed by the

Rehabilitation and Medical Services Unit of the Division of

Workers' Compensation.

(2) The 1996 Phvsicians' Current Procedural Temminologv

(CPT -4). 4th Edition. copyright 1995. Division has

incorporated procedure codes consistent with the

American Medical Association's Current Procedural Terminology

(1990 and 1992 CPT), the 1990 Reimbursement Guide for Physicians

published by Bluc Cross and Bluc Shield

Florida, Incorporated , and the 1995 Current Dental

Terminologv (CDT -2). 2nd Edition. copyright 1994 . American

Dental Association's Current Dental Terminology (1990

CDT 1) and the Health Care Financing Administration's

Common Procedural Coding Svstem (HCPCS), Level 11, 1995

Edition. These publications are adopted by reference as part of

this rule. When a procedure is performed, which is not listed in

the 1997 Florida Workers' Compensation Health care Provider

Fee for Service Reimbursement Mmanual, the provider must

use a the appropriate code and descriptor contained in either

the CPT -4. CDT -2 or HCPCS most current copy of the appropriate

aforementioned publication (CPTs, 1990 Reimbursement Guide for

Physicians, or CDT). In such instances, insurance carriers must

rely on their on data to determine the appropriate

reimbursement .

(3) All medical services provided must be "medically

necessary" as that term is defined in Section 440.13, Florida

Statutes. Medical services which are of an experimental,

investigative or research nature must be approved by the

Division of Workers' Compensation prior to authorization by the

carrier.

Specific Authority 440.13 ( 7 ) (4)(b ), 440.13(8), 440.13(11),

440.13(12), 440.13(13), 440.13(14) , 440.591 FS. Law Implemented

440.13 (6), 440.13(7), 440.13(8), 440.13(11) 440.13

(12), 440.13(13), 440.13(14) FS. History-New 10-1-82, Amended 3-

16-83, 11-6-83, 5-21-85, Formerly 38F-7.20, Amended 4-1-88, 7-

20-88, 6-1-91, 4-29-92, 2-18-96.

NAME OF PERSON ORIGINATING PROPOSED RULE: Linda Knopf, Unit

Coordinator, Rehabilitation and Medical Services Unit.

NAME OF SUPERVISOR OR PERSON WHO APPROVED

THE PROPOSED RULE: Jimmy R. Glisson, Director,

Division of Workers' Compensation

DATE PROPOSED RULE APPROVED: December 6, 1997

DATE NOTICE OF PROPOSED RULE DEVELOPMENT

PUBLISHED IN F.A.: December 27, 1996.

DEPARTMENT OF ELDER AFFAIRS

Facilities and Federal Programs for the Aging

RULE CHAPTER TITLE: RULE CHAPTER NO.:

Hospice 58A-2

RULE TITLES RULE NOS.:

Purpose 58A-2.001

Definitions 58A-2.002

License Required 58A-2.003

Licensure Procedure 58A-2.004

Administration of the Hospice 58A-2.005

Administrative Officer 58A-2.006

Administrative Policies and

Practices 58A-2.007

Coordinated Care Program 58A-2.009

Quality Assurance/Utilization Review (QA/UR)

Committee and Plan 58A-2.010

Program Reporting 58A-2.012

Ratio of Inpatient to

Home-Care Services 58A-2.013

Medical Direction 58A-2.014

Nursing Services 58A-2.0141

Pastoral/Spiritual Counseling

Services 58A-2.015

Counseling and Social Services 58A-2.016

Volunteer Services 58A-2.017

Bereavement Services 58A-2.018

Nutritional Services 58A-2.019

Advance Directives 58A-2.0232

Residential Units 58A-2.0236

Physical Plant Requirements

(Inpatient Unit) 58A-2.024

PURPOSE AND EFFECT: Hospice Chapter 58A-2 is being revised in

order to: 1) clarify requirements regarding hospice licensure,

administration, staffing, reporting and provision of

Section II - Proposed Rules