Judges: ELLA JANE P. DAVIS
Agency: Department of Management Services
Latest Update: Oct. 01, 1987
Summary: Whether or not medical expenses for a private hospital room and private duty nurses for three days are covered by the Employees' Self Insured Group Health Insurance Plan, as administered by Blue Cross and Blue Shield of Florida.Medical expenses for private duty nurses for 3 days found covered by state ground insurance plan under circumstances of this case; Final Order reversed Recommendation
87-1482STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD S. DAVIS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1482
) DEPARTMENT OF ADMINISTRATION,)
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, final formal hearing in this cause was held before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings, in West Palm Beach, Florida, on August 27, 1987.
APPEARANCES
For Petitioner: Mr. Richard S. Davis, pro se
3901 36th Court, Apartment 212 West Palm Beach, Florida 33407
For Respondent: Augustus D. Aikens, Jr., Esquire General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
ISSUE
Whether or not medical expenses for a private hospital room and private duty nurses for three days are covered by the Employees' Self Insured Group Health Insurance Plan, as administered by Blue Cross and Blue Shield of Florida.
BACKGROUND AND PROCEDURE
On January 14, 1987, Dennis Nye, Chief, Office of Insurance, informed petitioner payment of his private hospital room and private duty nursing charges were denied because of a lack of documentation demonstrating that those charges were medically necessary. Petitioner timely submitted a Petition for Formal Administrative Hearing contesting the agency's action. The agency elected to request assignment of the case to a Hearing Officer of the Division of Administrative Hearings.
At formal hearing, Petitioner testified on his own behalf and presented the oral testimony of his wife, Rosa L. Davis. Petitioner had admitted three exhibits.
Respondent presented the oral testimony of William Seaton. Respondent had admitted three exhibits.
No transcript was provided. Respondent timely submitted proposed findings of fact and conclusions of law which are ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Petitioner waived the opportunity to file any post-hearing proposals.
FINDINGS OF FACT
At all times pertinent to the issues contained herein, Petitioner was the husband and eligible dependent of Rosa L. Davis, #127-26-459, an insured employee under the State of Florida Employees Group Health Self Insurance Plan, provided for in Section 110.123, Florida Statutes. Eligible dependents are entitled to participate and obtain the identical level of benefits as are available to insured employees.
On June 9, 1926, Petitioner was admitted to the Good Samaritan Hospital, West Palm Beach, Florida, by his physician, Dr. Barry Rosenberg, with a diagnosis of acute cholecystitis. Cholecystitis is an inflammation of the gallbladder. Petitioner's gallbladder was markedly gangrenous requiring Petitioner to submit to a cholecystectomy, which is the surgical removal of the gallbladder.
This operation was performed by Richard A. Lynn, M.D., who thereby became the primary treating physician. His clinical notes contained in the operative report indicate Petitioner was taken "urgently to the Operating Theatre for surgical intervention." His discharge summary reveals Petitioner was "taken immediately to the Operating Theatre because of physical findings as well as being an insulin diabetic." These documents were not objected to and are part of the Division's file, utilized in the initial decision to turn down the claim. The magic word "emergency" was not used by Dr. Lynn until his June 16, 1926 letter (P-1, p. 17) referred to in finding of fact 13.
At admission, Petitioner was a 54 year old "quite obese and large" insulin dependent diabetic.
Petitioner had an uneventful post-operative course and was discharged on June 13, 1986 to the care of Drs. Rosenberg and Lynn.
Petitioner remained in the Intensive Care Unit of the Good Samaritan Hospital only during the first night following his surgery and was transferred immediately to a private room on the morning of June 10, 1926.
Petitioner obtained the services of private duty nurses and a private room on June 10-13, 1926. Petitioner testified that his decision was reached based on the recommendation of his physician, Dr. Richard A. Lynn.
On June 10, 1926, petitioner received "around the clock" services of private duty nurses at a daily cost of $256.00. Over the succeeding two days, June 11 and 12, 1926; Petitioner received private duty nursing care totaling
$336.00. On the last day of his hospital stay, June 13, 1926, Petitioner was charged $256.00 for private duty nursing care. The private duty nursing care totaled $242.00. In addition to the more prosaic around the clock nursing available at the hospital, the private duty nurses stayed in the private room with Petitioner to monitor his post-operative condition, fed him in the very early stages of recovery when he could not feed himself, bathed him, administered respiratory therapy (pounded on his back to clear his lungs and had
him breathing through a tube), administered medications, and got him up and walking on a regular therapy basis.
Petitioner's private room rate ($199.00 per day)- exceeded the semi- private room rate ($169.00) by $30.00 per day. The total charge for Petitioner's private room was $90.00.
The private room daily rate includes bed, board, and around the clock nursing services. No discount in the daily rate was made because of Petitioner's use of private duty nurses.
By letter dated August 7, 1987; Petitioner was advised "the State Plan does not provide benefits for private duty nursing while a patient is admitted as an inpatient to a hospital facility."
William Seaton, a Benefits Analyst of the Office of Employees' Insurance, Department of Administration, testified that the State Plan does cover private duty nursing care as well as private rooms, if they are medically necessary. This requirement of "medical necessity" is not specifically disclosed or defined in the synopsized informational summaries provided to insureds but is set out in its Benefit Document as covered in the following Conclusions of Law. The Benefit Document is available to insureds if they seek it out.
Without objection, Petitioner offered the statements from Dr. Lynn, which are contained in a letter dated June 16, 1926 (P-1; p. 17). Respondent had admitted a December 16, 1926 letter of Dr. Lynn (R-2). These letters establish the medical necessity for the private room and special nursing services. Dr. Lynn stated in his June 16, 1926 letter that it was
. . . at my recommendation and in my judgment as his physician and surgeon that private duty nurses and a private room were absolutely necessary . . . [they] aided in the well-being and post-operative care of the patient . . . it was my feeling that private duty nurses and a private room were essential in the patient's management and eventual outcome and it was at my request rather than the patient's that this be enacted.
In This December 16, 1926 letter, Dr. Lynn emphasized much of the foregoing and further stated,
I totally believe that it was with this outstanding nursing that his course was uneventful and expedited being therefore cost effective in allowing his hospitalization to be shortened. The nurses assisted in his ambulation at the time and with his diabetes management. It is my unequivocal feeling that this again aided in his rapid recovery.
Respondent's witness, Mr. Seaton, was not qualified as a medical physician to render expert evidence as to "medical necessity." He deferred to Dr. Dever, the Plan's medical reviewer. The only letter from Dr. Dever merely amounts to a request for more information (R.3).
Petitioner has demonstrated no entitlement for $8.00 in copying costs attendant upon submission of his claim.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.
Section 110.123(5), Florida Statutes, gives the Secretary of Administration the responsibility for administering the state group insurance program. Additionally, the Department, subject to legislative approval, determines benefits and the required contributions. Specifically, this section provides:
Such determinations, whether for a contracted plan or a self-insurance plan pursuant to paragraph (c), do not constitute rules within the meaning of s. 120.52(15) or orders within the meaning of s. 120.52(10).
The Department of Administration has determined in its Benefits Document, which establishes the level of benefits payable under the plan, covered hospital and major medical- expenses are as follows:
SECTION II COVERED HOSPITAL AND OTHER FACILITY SERVICES
The following services shall be covered when ordered by a physician and which are
medically necessary for the treatment of an insured as a result of a covered accident or illness . . . .
When confined to a semi-private or private room or ward, 20 percent of the hospital's average semi-private room rate shall be paid but not to exceed an actual payment of one-hundred and thirty-six dollars . . . .
SECTION IV OTHER COVERED SERVICES
The Plan shall pay 20 percent of the charge for the following medically necessary services when ordered by a physician for the treatment of an insured as a result of a covered accident or illness . . . .
A. Nursing care by a registered graduate nurse or licensed practical nurse; . . .
"Medically necessary" is defined in the benefit document and also in Rule 22K-1.103(40) as follows:
"Medically necessary" shall mean that in the opinion of the administrator the service received is required to identify or treat the illness or injury which a physician has
diagnosed or reasonably suspects. The service must be consistent with the diagnosis and treatment of the participant's condition, be in accordance with standards of good medical practice, and be required for reasons other than convenience of the participant or his or her physician. The fact that a service is prescribed by a physician does not necessarily mean that such service is medically necessary.
Also, the Benefit Document particularly exempts from coverage any service or charge for services which are not medically necessary in the treatment of the insured.
Dr. Lynn qualifies as a "physician" as defined by the program. Although normally all of Dr. Lynn's correspondence and medical notes would be hearsay, there was no objection on that ground and it was clear that the parties desired to use all of the medical records and correspondence in lieu of live oral testimony. Therefore, Dr. Lynn's opinions, however vague, are unrefuted by other medical opinion. Although Respondent showed it would prefer to have nursing notes and an indication from Dr. Lynn as to what specific additional benefit was derived from the specialized treatment afforded Petitioner and that its medical doctor reviewer could not determine medical necessity without further submissions, it has not refuted Petitioner's prima facie case that the treatment was necessary to prevent post-surgery complications inherent in insulin dependent diabetics who undergo emergency gallbladder surgery and that due to the specialized treatment the recovery period was resultantly "uneventful." There is no suggestion that the treatment was inconsistent with the dual diagnosis or that it was done merely for the "convenience" of Petitioner or Dr. Lynn. In fact, the evidence is to the contrary.
In the instant Section 120.57(1) proceeding, the undersigned sits as the head of the executive agency to try the issues de novo. See Houlistan v. Department of Administration, DOAH Case No. 24-3690 (Recommended Order entered May 2, 1985) Final Order entered May 15, 1985. Upon the foregoing findings of fact, it is concluded that the preponderance of evidence supports Petitioner's entitlement to payment of his claim.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a Final Order
paying the claimed benefits in the respective percentages allowed as "medically
necessary."
DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987.
APPENDIX
Petitioner submitted no proposals.
The following rulings are made upon Respondent's proposed findings of fact (FOF):
Covered in FOF 1.
Covered in FOF 2.
Covered in FOF 4.
Covered in FOF 5.
Rejected and modified to conform to the evidence as a whole in FOF 6.
The introductory clause is rejected as giving a false impression of cause and effect as discussed in FOF 5, 8, and the Conclusions of Law. The remainder of the proposal is accepted.
Covered and expanded to conform to the evidence as a whole in FOF 8.
Covered in FOF 9.
Covered in FOF 10.
Covered in FOF 11. 711. Covered in FOF 12.
12. Rejected as covered in FOF 13-14 and the Conclusions of Law which correctly reflect the evidence as a whole and the weight to be afforded that evidence.
COPIES FURNISHED:
Richard S. Davis
3901 36th Court, Apt. 212
West Palm Beach, Florida 33407
Augustus D. Aikens, Jr., Esquire General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Adis Villa, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD S. DAVIS,
Petitioner,
vs. DOAH CASE NO. 87-1482
DOA NO. A-87-8
STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, OFFICE OF STATE EMPLOYEES INSURANCE,
Respondent.
/
FINAL ORDER
Upon due notice, final formal hearing in this cause was held before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings, in West Palm Beach, Florida, on August 27, 1987.
APPEARANCES
For the Petitioner: Mr. Richard S. Davis, pro se
3901 36th Court, Apt. 212
West Palm Beach, Florida 33407
For Respondent: Augustus D. Aikens, Jr., Esquire
General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
ISSUE
Whether or not medical expenses for a private hospital room and private duty nurses for three days are covered by the Employees' Self Insured Group Health Insurance Plan, as administered by Blue Cross and Blue Shield of Florida.
BACKGROUND AND PROCEDURE
On January 14, 1987, Dennis Nye, Chief, Office of Insurance, informed Petitioner payment of his private hospital room and private duty nursing charges were denied because of a lack of documentation demonstrating that those charges were medically necessary. Petitioner timely submitted a Petition for Formal Administrative Hearing contesting the agency's action. The agency elected to request assignment of the case to a Hearing Officer of the Division of Administrative Hearings.
At formal hearing, Petitioner testified on his own behalf and presented the oral testimony of his wife, Rosa L. Davis. Petitioner had admitted three exhibits.
Respondent presented the oral testimony of William Seaton. Respondent had admitted three exhibits.
Respondent timely submitted proposed findings of fact and conclusions of law which are ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Petitioner waived the opportunity to file any post-hearing proposals.
The findings of the Hearing Officer are accepted, except portions of findings 3 and 13, which are rejected as conclusions of law and a typographical error in finding numbered 10.
FINDINGS OF FACT
At all times pertinent to the issues contained herein, Petitioner was the husband and eligible dependent of Rosa L. Daivs, #127-26-8459, and insured employee under the State of Florida Employees' Group Health Self Insurance Plan, provided for in Section 110.123, Florida Statutes. Eligible dependents are entitled to participate and obtain the identical level of benefits as are available to insured employees.
On June 9, 1986, Petitioner was admitted to the Good Samaritan Hospital, West Palm Beach, Florida, by his physician, Dr. Barry Rosenberg, with a diagnosis of acute cholecystitis, which is an inflammation of the gallbadder. Petitioner's gallbladder was markedly gangrenous requiring Petitioner to submit to a cholecystectomy, which is the surgical removal of the gallbladder.
This operation was performed by Richard A. Lynn, M.D., who thereby became the primary treating physician. His clinical notes contained in the operative report indicate Petitioner was taken "urgently to the Operating Theatre for surgical intervention." His discharge summary reveals Petitioner was "taken immediately to the Operating Theatre because of physical findings as well as being an insulin diabetic. The magic word "emergency" was not used by Dr. Lynn until his June 16, 1986 letter (P-1, p. 17) referred to in finding of fact 13.
At admission, Petitioner was a 54 year old quite obese and large" insulin dependent diabetic.
Petitioner had an uneventful post-operative course and was discharged on June 13, 1986 to the care of Drs. Rosenberg and Lynn.
Petitioner remained in the Intensive Care Unit of the Good Samaritan Hospital only during the first night following his surgery and was transferred immediately to a private room on the morning of June 10, 1986.
Petitioner obtained the services of private duty nurses and a private room on June 10-13, 1986. Petitioner testified that his decision was reached based on the recommendation of his physician, Dr. Richard A. Lynn.
On June 10, 1986, Petitioner received "around the clock" services of private duty nurses at a daily cost of $256.00. Over the succeeding two days, June 11 and 12, 1986, Petitioner received private duty nursing care totaling
$336.00. On the last day of his hospital stay, June 13, 1986, Petitioner was charged $256.00 for private duty nursing care. The private duty nursing care totaled $848.00. In addition to the more prosaic around the clock nursing available at the hospital, the private duty nurses stayed in the private room with Petitioner to monitor his post-operative condition, fed him in the very early stages of recovery when he could not feed himself, bathed him, administered respiratory therapy (pounded on his back to clear his lungs and had him breathing through a tube), administered medications, and got him up and walking on a regular therapy basis.
Petitioner's private room rate ($199.00 per day) exceeded the semi- private room rate ($169.00) by $30.00 per day. The total charge for Petitioner's private room was $90.00.
The semi-private room daily rate includes bed, board, and around the clock nursing services. No discount in the daily rate was made because of Petitioner's use of private duty nurses.
By letter dated August 7, 1987, Petitioner was advised "the State Plan does not provide benefits for private duty nursing while a patient is admitted as an inpatient to a hospital facility".
William Seaton, a Benefits Analyst of the Office of Employees' Insurance, Department of Administration, testified that the State Plan does cover private duty nursing care as well as private rooms, if they are medically necessary. This requirement of "medical necessity" is not specifically disclosed or defined in the synopsized, informational summaries provided to insureds but is set out in its Benefit Document as covered in the following Conclusions of Law. The Benefit Document is available to insureds if they seek it out.
Without objection, Petitioner offered the statements from Dr. Lynn, which are contained in a letter dated June 16, 1986 (P-1, p. 17). Respondent had admitted a December 16, 1986 letter of Dr. Lynn (R-2). Dr. Lynn stated in his June 16, 1986 letter that it was
...at my recommendation and in my judgment as his physician and surgeon that private
duty nurses and a private room were absolutely necessary... [they] aided in the well-being and post-operative care of the patient.
it was my feeling that private duty nurses and a private room were essential in the patient's management and eventual outcome and it was at my request rather than the patient's that this be enacted.
In his December 16, 1986 letter, Dr. Lynn emphasized much of the foregoing and further stated,
I totally believe that it was with this outstanding nursing that his course was uneventful and expedited being therefore cost effective in allowing his hospitali- zation to be shortened. The nurses assisted in his ambulation at the time and with his diabetes management. It is my unequivocal feeling that this again aided in his rapid recovery.
Respondent's witness, Mr. Seaton, was not qualified as a medical physician to render expert evidence as to "medical necessity." He deferred to Dr. Dever, the Plan's medical reviewer. The only letter from Dr. Dever merely amounts to a request for more information (R.3).
Petitioner has demonstrated no entitlement for $8.00 in copying costs attendant upon submission of his claim.
Petitioner did not offer any competent medical evidence on the medical necessity of the private duty nurses or the private room.
CONCLUSIONS OF LAW
Section 110.123(5), Florida Statutes, gives the Secretary of Administration the responsibility for administering the state group insurance program. Additionally, the Department, subject to legislative approval, determines benefits and the required contributions. Specifically, this section provides:
Such determinations, whether for a contracted plan or a self-insurance plan pursuant to paragraph (c), do not constitute rules within the meaning of s. 120.52(15) or orders within the meaning of s. 120.52(10).
The Department of Administration has determined in its Benefits Document, which establishes the level of benefits payable under the plan, covered hospital and major medical-expenses are as follows:
SECTION II COVERED HOSPITAL AND OTHER FACILITY SERVICES
The following services shall be covered when ordered by a physician and which are medically necessary for the treatment of an insured as a result of a covered accident or illness.
When confined to a semi-private or private room or ward, 80 percent of the hospital's average semi-private room rate shall be paid but not to exceed an actual payment of one- hundred and thirty-six dollars....
SECTION IV OTHER COVERED SERVICES
The Plan shall pay 80 percent of the charge for the following medically necessary services when ordered by a physician for the treatment of an insured as a result of a covered accident or illness.
A. Nursing care by a registered graduate nurse or licensed practical nurse;...
"Medically necessary" is defined in the Benefit Document and also in Rule 22K-1.103(40), F.A.C., as follows:
"Medically necessary" shall mean that in the opinion of the administrator the services received is required to identify or treat the illness or injury which a physician has diag- nosed or reasonably suspects. The service must be consistent with the diagnosis and treatment of the participant's condition,
be in accordance with standards of good medical practice, and be required for reasons other than convenience of the participant or his or her physician. The fact that a service is prescribed by a physician does
not necessarily mean that such service is medically necessary.
Also, the Benefit Document particularly exempts from coverage any service or charge for services which are not medically necessary in the treatment of the insured.
Dr. Lynn qualifies as a "physician" as defined by the program. However, Dr. Lynn's correspondence and medical notes are hearsay.
Although hearsay evidence is admissible in an administrative hearing to corroborate or explain other evidence, it may not be used to support a finding not otherwise supported by competent substantial evidence. Spicer v. Metropolitan Dade County, 458 So.2d 792 (Fla. 3rd DCA 1984); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), see also Section 120.58, Florida Statutes (1987).
The case is analogous to MacPherson v. School Board of Monroe County,
505 So.2d 682 (Fla. 3rd DCA 1987), in which the hearing officer based his decision solely on MacPherson's testimony that both she and her doctor felt her feet had completely healed. The hearing officer recognized the doctor's opinion was hearsay but nevertheless relied on it to corroborate MacPherson's testimony.
The school board rejected the hearing officer's recommended conclusions of law, and the District Court agreed. The Court held: "Since the only basis for admitting the doctor's hearsay opinion was as support for MacPherson's testimony which was based upon the same doctor's opinion, it follows that the hearing officer's finding...was not supported by competent substantial evidence.
Accordingly, reliance on Dr. Lynn's hearsay evidence to corroborate Petitioner's testimony that his decision (to obtain private duty nurses and a
private room) was based on Dr. Lynn's opinion is not competent substantial evidence needed to support a finding that the private room and private duty nurses were medically necessary.
WHEREFORE, based upon the foregoing findings of fact and the rulings of the Department with respect to the Hearing Officer's Recommended Order, it is
ORDERED and DIRECTED that the Recommended Order is accepted as to those issues specifically adopted herein and is otherwise rejected as not being supported by competent substantial evidence. It is further
ORDERED and DIRECTED that the petition of Richard S. Davis for payment of medical expenses for hospital room and nursing care be and the same is hereby DENIED.
DONE AND ORDERED in Tallahassee, Florida this 20th day of May, 1988.
Filed with the Clerk of the Department of Administration this 20th day of May,
1988.
ADIS M. VILA, SECRETARY
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
CLERK
COPIES FURNISHED:
Ella Jane P. Davis, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Mr. Richard S. Davis
3901 36th Court, Apt. 212
West Palm Beach, Florida 33407
Augustus D. Aikens, Jr., Esquire General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
NOTICE OF RIGHT TO JUDICIAL REVIEW
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 A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF ADMINISTRATION, 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 HE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Docket for Case No: 87-001482
Orders for Case No: 87-001482
| Issue Date |
Document |
Summary |
|
May 20, 1988 |
Agency Final Order
|
|
|
Oct. 01, 1987 |
Recommended Order
|
Medical expenses for private duty nurses for 3 days found covered by state ground insurance plan under circumstances of this case; Final Order reversed Recommendation
|
