By: Yosue Ochoa, Associate, Miami

Throughout Florida, we continue to see claimants successfully challenging the admissibility of authorized physicians’ testimony based on the argument that the physician was being paid above the maximum dollar amount provided by the fee schedule.  If the Carrier chooses to deviate from the required fee schedule, the consequences could be disastrous.  Naturally, the questions become, (1) what can transpire if a Carrier chooses to depart from the fee schedule and come to a different reimbursement arrangement with the health care provider, and (2) are there any circumstances in which it would be acceptable to divert from the fee schedule? 

This risk is substantiated by a decision of one JCC in the state. In November of 2015, Judge Medina-Shore made a ruling in the case of Luis Rodriguez v. Demetech Corporation/Normandy Harbour Insurance Company, OJCC Case No. 14-028630SMS. In Rodriguez, the claimant made a one-time change request and the Carrier timely authorized an alternate orthopedic spine surgeon.  Additionally, the Carrier agreed to reimburse the physician at a rate which deviated from the fee schedule.  After two visits with the spine surgeon, the carrier sent the claimant the payout ledger which depicted the payments made to the new spine surgeon, but did not include an itemized description of the payments.  Once the claimant became aware of the deviation from fee schedule payments the Carrier made to the provider, the claimant objected and moved to strike the spine surgeon’s testimony and have him de-authorized.  In opposition to the claimant’s motion to de-authorize the spine surgeon, the Carrier argued that the claimant acquiesced to the fee schedule by receiving treatment from the spine surgeon without objection.  In the alternative, the Carrier argued that at the very least the Carrier should be afforded the opportunity to select a different spine surgeon because the one-time change provision was previously provided timely. 

The JCC ruled against the Carrier on both grounds. First, because the payout ledger provided to the claimant was not itemized to the point where the claimant could decipher the dollar amount the spine surgeon was reimbursed for each service provided, there was no way for the claimant to ascertain whether the figures were above the fee schedule; thus the claimant did not acquiesce.  Secondly, and most importantly, the judge found that because the Carrier agreed to reimburse the physician above fee schedule, the spine surgeon’s testimony was inadmissible because he was an unauthorized physician since inception.  Therefore, the Judge ruled that the Carrier did not comply with the claimant’s one-time change request, conveying medical treatment control to the claimant who can now choose any spine surgeon he desires.  Bear in mind, this is not controlling case law; however, it provides insight on the current arguments being raised.

The answer to question two is a little less clear.  Fla. Stat. §440.13(13)(b) does provide some guidance suggesting that a deviation from the fee schedule is acceptable if the provider “specifically agrees in writing to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs.” The statute goes on to list some of the procedures that could be included in an agreement with the physician which would warrant a deviation from the fee schedule.  These include, but are not limited to: the timely scheduling of appointments for injured workers, participating in return-to-work programs with the claimant, expediting the reporting of treatments provided to injured workers, agreeing to continuing education, utilization reviews, quality assurance, pre-certification, and case management systems designed to provide needed treatment for injured workers.  In other words, deviations can occur per the statute, but if the proper measures are not taken, any deviation from the fee schedule could lead to the de-authorization of the physician, and as was the case in Rodriguez, even lead to the Carrier losing control of medical care. 

Being proactive is the best solution for this problem.  If a Carrier intends to use a provider whose fees exceed the fee schedule, the Carrier needs to make sure the doctor will provide enhanced services geared to improve the quality of the medical care being provided to the injured worker, and specifically outline those services in an agreement before authorization and payments are made.   

Yosue Ochoa | Attorney