STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL BARNARD BAYER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0029

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF STATE )

EMPLOYEES' INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on April 10, 1990, in Fort Lauderdale, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Martin J. Sperry

SPERRY & SHAPIRO, P.A.

Suite 300

805 East Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: William A. Frieder

Senior Attorney

Department of Administration

438 Carlton Building

Tallahassee, Florida 32399-1550 STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner is entitled to benefits under the State of Florida Employees Group Health Self Insurance Plan for services rendered in connection with the use of a home uterine monitoring service.

PRELIMINARY STATEMENT

This case began on November 15, 1989, when the Department of Administration, Division of State Employees Insurance (Department) notified the Petitioner that her request for benefits had been denied. Thereafter, Petitioner filed a petition seeking administrative review of her claim denial, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on January 3, 1990.

At the hearing, Petitioner testified in her own behalf

and presented the testimony of Carolyn Brown, a registered nurse, who operates Patient Testing Services. Tylee Rowe, the Department's supervisor for customer claims service, testified on behalf of the Department. The depositions of the following witnesses have been received: Dr. Paul Gluck; Dr. Rafael A. Rivera, and Dr. Stephen Schneider. Petitioner's exhibits numbered 1 through 6 were admitted into evidence. The Department's exhibits numbered 1 through 3 were also admitted.

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made:

1. For 13 years prior to March, 1988, Petitioner, Carol Barnard Bayer, was a permanent employee of the State of

   Florida, Department of Health and Rehabilitative Services. As a benefit of such employment, Petitioner was eligible and, therefore, became enrolled and participated in the State of Florida Employees Group Health Self Insurance Plan (Group Plan).

   
   

2. In late 1987, Petitioner became pregnant. The estimated delivery date for her child was July 16, 1988. On March 8, 1988, Petitioner was admitted to the Plantation General Hospital in Plantation, Florida, with complaints of abdominal pain. Following examination by her physician, Petitioner was diagnosed as being in premature labor. To control contractions, Petitioner was placed in the perinatal intensive care unit and was administered tocolytic agents, primarily a drug known as Ritodrine. Tocolytic agents such as Ritodrine are used to inhibit uterine movement or contractions.

   
   

3. Petitioner remained in the hospital, was connected

   to a uterine monitoring device while receiving the Ritodrine, and was released to home bedrest on March 13, 1988. In Petitioner's case, an ambulatory home uterine monitor (AHUM) was utilized to gauge the effectiveness of the Ritodrine to control the premature labor contractions. By following the uterine movement, the AHUM allowed a technician and physician to determine whether the dosage and timing of the drug were appropriate. This procedure proved useful in controlling Petitioner's uterine activity while she remained hospitalized.

   
   

4. Upon her release from the hospital, Petitioner's physician, Dr. Schneider, recommended that she continue taking the Ritodrine, and be monitored by a home monitoring service. Dr. Scheider determined that the AHUM was medically necessary in order to judge the Ritodrine's effectiveness.

5. Accordingly, Petitioner remained at home connected

   to the uterine monitoring device while continuing the medication. At various times, the monitoring service (Patient Testing Services) would contact Petitioner's physician, advise him of changes in the uterine movement, and coordinate a dosage change with Petitioner. This process continued from Petitioner's release from the hospital until the unborn child was deemed viable, June 16, 1988.

   
   

6. The cost of the monitoring service was $80.00 per

   day. The costs associated with hospitalization of the Petitioner would have greatly exceeded that amount. The total amount billed by Patient Testing Services for the monitoring was $7830.00.

   That amount was disallowed by the Administrator of the Group Plan.

   
   

7. Part VII. Exclusions, of the Group Plan provides, in pertinent part:

   
   

   W. Any service or procedures which are determined by the Administrator to be experimental or investigative or are not in accordance with generally accepted professional medical standards; complications of non-covered services.

   
   

8. The Administrator of the Group Plan is Blue Cross

   and Blue Shield of Florida, Inc. Claims from State employees for benefit payments are routed to Blue Cross for evaluation and approval or denial. Dr. Rafael A. Rivera is in charge of the Medical Affairs Division at Blue Cross. It is Dr. Rivera's responsibility to render decisions regarding coverage of services and the manner of reimbursement based upon medical policies. Dr. Rivera reviewed the claim for reimbursement regarding the use of an AHUM. His review was limited to the status of the service as opposed to the specific circumstances of the Petitioner. Based upon his review, Dr. Rivera determined the use of the AHUM to be investigational with reimbursement therefore, excluded by the Group Plan.

   
   

9. The basis for Dr. Rivera's opinion was that the monitor has not received regulatory approval for the prevention of preterm labor. According to Dr. Rivera, the device has been accepted for monitoring uterine contractions in full-term labor but not pre-term labor. Presumably, if used as the sole source for determining pre-term labor, the use of an AHUM would be

   considered investigational since its effectiveness for that purpose has not been medically established.

   
   

10. In this case, the AHUM was not utilized to determine pre-term labor. The device was used only after Petitioner was diagnosed as being in pre-term labor and placed on a medication generally accepted as appropriate to deter pre-term contractions (Ritodrine). In this instance, the AHUM was used to monitor the effectiveness of the drug dosage.

11. Dr. Rivera was not aware of the status of the AHUM when used as a monitoring device for a patient on Ritodrine.

    
    

12. Dr. Paul Gluck is board certified in obstetrics

    and gynecology. He is president of the Florida Obstetrics and Gynecologic Society. According to Dr. Gluck, the use of an AHUM for a patient who has entered tocolytic therapy for pre-term labor is medically essential. In the absence of the monitor, Dr. Gluck would not be inclined to allow such a patient to return home. According to Dr. Gluck, the use of the AHUM under the facts of this case would not be experimental or investigational since the device is commonly used once the necessity for tocolytic drugs is established. Under the facts of this case, the device was not used for a diagnostic purpose, it was used as a therapeutic monitor of the Ritodrine.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

14. An insurance policy exclusionary clause which is ambiguous or otherwise susceptible to more than one meaning must be liberally construed in favor of the insured and strictly construed against the insurer. Hartnett v. Southern Insurance Company, 181 So.2d 524 (Fla. 1965), State Farm Mutual Automobile Insurance Company v. Pridgen, 498 So.2d 1245 (Fla. 1986).

    
    

15. Ambiguity is not necessarily present simply because analysis is required to interpret the policy. Ambiguity does exist when the terms of the insurance policy make it subject to different reasonable interpretations. Blue Shield of Florida, Inc. v. Woodlief, 359 So.2d 883 (Fla. 1st DCA 1978), Travelers Insurance Company v. C. J. Gayfer's and Co., Inc., 366 So. 2d 1199 (Fla. 1st DCA 1979).

    
    

16. In this case, the Group Plan Administrator only considered the use of the AHUM from a limited vantage point. Since the monitor has not been accepted for the purpose of tracking pre-term labor, the conclusion was reached that usage for such purpose would be investigational. That usage was not employed in this case. Petitioner was diagnosed to be in pre- term labor before the monitor was used. Its use under the facts in this case is not considered investigational by experts in the field of obstetrics and gynecology, since its medical effectiveness to monitor the dosages of tocolytic drugs is well established.

    
    

17. The evidence in this case supports the conclusion that the exclusionary clause was arbitrarily applied since the Administrator did not consider the circumstances `of the usage.

The generally accepted professional medical standard requires the use of the monitor when tocolytic drugs are employed to deter

pre-term labor. The evidence of this standard (and usage) was more reliable and more current than the information upon which Dr. Rivera relied.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Administration enter a final

order granting Petitioner's request for insurance benefits for the AHUM as utilized under the facts of this case.

DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1990.

APPENDIX TO CASE NO. 90-000029 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY

THE PETITIONER:

1. The first three sentences of paragraph 1 are accepted. The remainder of the paragraph is rejected as argument or comment.

2. Paragraphs 2 and 3 are accepted.

3. The first three sentences of paragraph 4 are accepted. The remainder of the paragraph is rejected as irrelevant, hearsay, argument or not supported by the record.

4. Paragraph 5 is rejected as irrelevant.

5. The first sentence of paragraph 6 is rejected as irrelevant. The remainder of the paragraph is accepted.

6. With the exception of the last two sentences, paragraph 7 is accepted. The last two sentences of paragraph 7 are rejected as contrary to the weight of the evidence. Dr. Rivera did acknowledge Ritodrine to be a tocolytic drug, the use of which should be monitored.

7. Paragraph 8 is accepted.

8. Paragraph 9 is accepted.

9. Paragraph 10 and, with the exception of the last

   two sentences, paragraph 11 are accepted. The last two sentences of paragraph 11 are rejected as irrelevant or argument.

10. Paragraph 12 is accepted.

11. Paragraph 13 is rejected as irrelevant.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 5 are accepted.

2. Paragraphs 6 through 11 are rejected as irrelevant.

3. Paragraphs 12 and 13 are accepted but are not controlling as the weight of the evidence in this case would suggest that the device is only investigational as it relates to diagnosis of pre-term labor, not as used in this case.

4. Paragraph 14 is rejected as irrelevant.

5. Paragraph 15 is accepted.

6. Paragraphs 16 through 19 are rejected as contrary to the weight of the evidence.

7. Paragraphs 20 through 29 are accepted.

8. Paragraph 30 is rejected as contrary to the weight of the evidence.

9. Paragraphs 31 through 34 are rejected as irrelevant, contrary to the facts and weight of the evidence of this case, or inconclusive based upon all facts and circumstances of this case.

10. Paragraphs 35 through 37 are accepted.

COPIES FURNISHED:

Martin J. Sperry SPERRY & SHAPIRO, P.A.

Suite 300

805 East Broward Boulevard

Fort Lauderdale, Florida 33301

William A. Frieder Senior Attorney

Department of Administration

438 Carlton Building

Tallahassee, Florida 32399-1550

Aletta Shutes Secretary

Augustus Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Carl Ogden Division Director

Division of State Employee's Insurance 2002 Old St. Augustine Road

Building B-12

Tallahassee, Florida 32301-4811

Docket for Case No: 90-000029

Orders for Case No: 90-000029