Monday, December 11, 2017 08:34 AM

Final Order from FSASC Workers’ Compensation Rule Challenge
By Saul R. Epstein, FSASC President

December 11, 2017 - 2017 marks a year of tremendous work accomplished by the FSASC on behalf of our members. One of the most recent successes of the FSASC is contained within the pages of an 83 page Final Order document issued by Judge Elizabeth McArthur, Administrative Law Judge, State of Florida, Division of Administrative Hearings, on November 30, 2017. It concerns a matter the FSASC has been involved with, on behalf of FSASC members, for a number of years. Click the link below to view the Final Order.

Final Order

A number of months ago, the Department of Financial Services, Division of Workers’ Compensation (“Department”) had published a proposal Rule to codify its non-Rule policy that was put into effect in 2015, that the FSASC felt, severely restricts ASCs from obtaining fair treatment for Workers’ Compensation Petitions filed with the Department (the “Proposed Rule”). The FSASC, through its Executive Director, Peter Lohrengel, outside legal counsel, myself, and others, participated in various informal meetings with Department staff and also participated in several formal workshops on this matter which were held in Tallahassee. Notwithstanding the FSASC’s exhaustive efforts in opposition of the Proposed Rule, the Department, determined to proceed to finalize its Proposed Rule. The FSASC’s Board of Directors determined that this issue was significant in that the Proposed Rule affected the substantial interests of a FSASC members and it voted in favor of a formal challenge to the Proposed Rule. As such, the FSASC filed a “Rule Challenge”, which essentially is the filing of a lawsuit against the State of Florida. It is a very big deal, and not to be taken lightly. It is time consuming and expensive, in terms of legal fees and cost.   

The Department, with the aligned position of a number of Carriers, who become “intervenors” in this case, vigorously defended its position and challenged not only the substantive position of the FSASC, but also it’s standing to bring the Petition Challenging Proposed Rule on behalf of its members. The initial burden fell on the FSASC to prove it had standing and then, once standing was determined, the burden would shift to the Department to prove that the Proposed Rule was not an invalid exercise of delegated legislative authority.

After a 3 day trial, which included Peter Lohrengel being sworn and testifying on behalf the FSASC, the Judge, in a sharply worded opinion, ruled in favor of the FSASC; which included that the (i) FSASC had standing to bring the Rule Challenge, (ii) FSASC’s members have already been directly and immediately harmed by the policies the Department sought to codify as Rules, and (iii) Department was not permitted to “carve-out” exceptions to the all-inclusive scope of the statutory reimbursement dispute process.