STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CELIA LAMPERT AND CURT LAMPERT, )

as parents and natural ) guardians of TYLER LAMPERT, a ) minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 97-2662N

)

FINAL ORDER ON HABILITATIVE CARE

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a final hearing in the above-styled case on October 13, 2003, by video teleconference, with sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioners: Celia Lampert, pro se

4949 Marbrisa Drive, Unit 1304

Tampa, Florida 33624

For Respondent: Wilbur E. Brewton, Esquire

Roetzel & Andress, LPA

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether the "Lindamood-Bell Learning Processes" (Lindamood-Bell program) qualifies as a covered expense under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

Tyler Lampert (Tyler), the son of Celia Lampert and

Curt Lampert, is a covered infant under the provisions of Section 766.301, et seq., Florida Statutes,1 the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Consequently, Tyler is entitled to payment for, inter alia, "[a]ctual expenses for medically necessary and reasonable . . . habilitative and training . . . care and service." § 766.31(1)(a), Fla. Stat.

In July 2003, Petitioners requested that Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), authorize payment for Tyler to attend the Lindamood-Bell program in Tampa, Florida. NICA denied the request and, at Petitioners' request, a hearing was held to resolve whether the Lindamood-Bell program was a covered expense under the Plan.

At hearing, Celia Lampert testified on Petitioners' behalf, and Petitioners' Exhibits 1 and 22 were received into evidence. Respondent called Kenny Shipley and Susan Barnes, an expert in learning for the disabled and assessments of learning

disability, as witnesses, and Respondent's Exhibit 1 was received into evidence.

The transcript of hearing was filed October 24, 2003, and the parties were accorded 10 days from that date to file proposed final orders. Neither party elected to file such a proposal.

FINDINGS OF FACT

Background

1. Petitioners, Celia Lampert and Curt Lampert, are the parents and natural guardians of Tyler Lampert, a minor. Tyler was born September 10, 1995, at Morton Plant Mease Health Care, a hospital located in Clearwater, Florida.

2. At birth, Tyler suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes, and he was accepted by NICA for coverage under the Plan. NICA's acceptance of the claim for compensation included its agreement to "pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes." Among those benefits are payment for "[a]ctual expenses for medically necessary and reasonable . . . habilitative and training . . . care and service." § 766.31(1), Fla. Stat.

3. Consistent with Section 766.305(6), Florida Statutes, NICA's acceptance of the claim for compensation was approved by order of November 10, 1997, and, as mandated by Section 766.31(2), Florida Statutes, the order required that NICA pay future expenses as incurred. The order further reserved

   jurisdiction to resolve any disputes, regarding the parties' compliance with the award. § 766.312, Fla. Stat.

4. Here, Petitioners contend NICA's refusal to authorize payment for Tyler to attend the Lindamood-Bell program violated Section 766.31(1)(a), Florida Statutes. In contrast, NICA contends the program is not medically necessary or, alternatively, that such expense is excluded from coverage because Tyler is entitled to receive substantially the same or similar services under the laws of the State of Florida or the Federal Government. § 766.31(1)(a), Fla. Stat.

   The claim for habilitative services

   
   

5. The Lindamood-Bell program is "an intensive program that's designed either for one-and-one instruction or small group instruction to teach children phonemic awareness skills, reading comprehension skills, mathematics skills, and reading comprehension skills." (Transcript, page 25.) The program is otherwise described on the Lindamood-Bell web site as "process- based education programs . . . for individuals ranging from severely learning disabled to academically gifted," that "develop the sensory-cognitive processes that underlie reading, spelling, language comprehension, math, and visual motor skills." (Respondent's Exhibit 1.) Here, Petitioners request that NICA authorize payment for Tyler to attend the program on a one-to-one

   basis, 3 to 4 hours a day, 5 times a week, for 6 to 8 weeks, at a cost of $1,380.00 per week.

6. Petitioners' request was predicated on the insights Mrs. Lampert has gleaned regarding Tyler over the years, and the limitations imposed on Tyler by his disability. According to

   Mrs. Lampert, whose testimony is credited, the brain injury Tyler suffered at birth, and which resulted in his acceptance into the NICA program, precipitated seizures that were not controllable with medication. Consequently, at age 2, Tyler underwent surgery to remove that portion of the left hemisphere of his brain that was damaged at birth, and which was responsible for the seizure activity.

7. While Tyler has apparently been seizure-free since surgery, the surgery also resulted in learning disabilities. Most notably, Tyler lost his peripheral field of vision. As explained by Mrs. Lampert.

   . . . I have taught Tyler from -- since after his surgery when he lost the field . . . how to read the entire page, scanned from all the way left, all the way right, because he's just going to see the left side of the page.

   
   

   So he's . . . mastered some of that with knowing how to turn his head to see the whole page, but he still has problems when he looks at the visual things that he is supposed to see and then say it back to you. Because of the left side of the brain being gone, he's just not seeing that the way we do.

   
   

   * * *

   
   

   But from what I know with Tyler and therapy and everything that I put in front of him and go over and over, it helps him a great deal. And, you know, maybe not, like, by the normal child, but it helps him a lot for what he functions with, it does help him.

   
   

   And I don't see why this would be any different than in an eight-week class how much it would help him, . . . to continue to hopefully get better and eventually, hopefully, be able to, take care of

   himself . . . .

   
   

   (Transcript, pages 12, 13, and 15.) Tyler also presents with ADHD (attention deficit hyperactivity disorder) and possibly dyslexia.

8. As for a public school alternative, Mrs. Lampert is of the opinion that "Tyler . . . does not do well in a big classroom setting because of his balance and because of his peripheral field being gone." (Transcript, page 13.) Accordingly, apart from a three-day period, Mrs. Lampert has home-schooled Tyler.

   As explained by Mrs. Lampert:

   
   

   I had him in public school for three days, and there's 32 kids in the classroom, because the school where we live is overcrowded. And so they let me stay in the office to make sure everything was going to be okay. So the second day, I was able to look through the window, and he didn't see me. Any anytime he got up, he could not go back and find his seat. And -- because it's the maze situation. And we had him set in the front of the teacher, so she could, you know, she could watch him, and I would, you know, talk to her about scanning the whole page and

   using his right hand to help him hold the page.

   
   

   And she was, she was going to work with that and she was willing to do that, and he still

   -- that's just not something he's mastered yet, so.

   
   

   Going the public school route, . . . well, . . . where I come from with Tyler

   going to a public school are all the other different issues that we have to deal with, that it just -- doing it in a public school wasn't going to work for Tyler.

   
   

   (Transcript, pages 13 and 14.) As an additional matter,

   
   

   Mrs. Lampert is opposed to medications, to address Tyler's ADHD, that may be necessary if he is to attend public school, since they may precipitate renewed seizure activity.

9. Given her concerns, Mrs. Lampert "found" the Lindamood- Bell program, and discussed it with Tyler's pediatrician,

   Dr. Wilfred Daily, Jr. (Transcript, page 10.) In turn, on

   
   

   July 2, 2003, Dr. Daily provided Mrs. Lampert with a prescription for Tyler "to be evaluated by Lindamood-Bell School." (Petitioners' Exhibit 1.)

10. Given the prescription, NICA approved, and paid for, Tyler's evaluation by the Lindamood-Bell program. However, after receipt of the results of that evaluation, and consideration of the information provided regarding the program, NICA, by letter of July 23, 2003, denied Petitioners' request that NICA pay for

    the program. The announced reasons for denial, set forth in NICA's letter to Mrs. Lampert, was as follows:

    Dear Mrs. Lampert:

    
    

    Thank you for sending the information about the Lindamood-Bell Program. It looks like a very interesting educational approach, and they advertise success with many types of learning problems.

    
    

    This program is a private educational program, and while it may be one that would help Tyler be more successful in his learning, it does not appear to be something that would be considered "medically necessary" for Tyler. That does not mean that he wouldn't benefit from the program, it is just not an expense that would be covered under the NICA plan.

    
    

    I don't want to discourage you. Although this program is advertised as an educational program, and does not fit into a therapy that appears to be "medically necessary," it may be a program that would be good for Tyler.

    You have to be the judge of that, and I applaud your dedication to assuring that he gets the best education, as well as the best medical treatment available. I encourage you to continue working with him and seeking out programs that will help him improve in any way. I just don't see anything in the materials that ties this program into any kind of medically necessary service . . . .

    
    

    Sincerely,

    
    

    Kenney Shipley, Executive Director

    
    

    Moreover, at hearing, NICA contended that Tyler was entitled to receive the same or substantially similar services from the State

    of Florida or the Federal Government and, therefore, the cost of the program was not an expense covered by the Plan.

11. Apart from Ms. Shipley, who reiterated her conclusion that the program was not medically necessary, NICA also presented the testimony of Susan Barnes, the coordinator of exceptional student education support services for Leon County Schools, and an expert in learning for the disabled and assessment of learning disabilities. Ms. Barnes addressed two issues relative to the program. First, Ms. Barnes noted that the testing done by the Lindamood-Bell program was dated (the tests were old) and incomplete (only a portion of each test was administered), and was apparently administered to serve as a pre/post assessment vehicle, and not to assess whether Tyler had a learning disability or whether he would benefit from the program. To adequately assess Tyler's learning disability would require an individual test of intellectual ability to assess his general capabilities and a thorough academic achievement test to resolve whether there was a significant discrepancy between his ability, as indicated by his intellectual score, and his achievement, as reflected by the results on the academic achievement tests. If there were significant differences, followup testing would be necessary to identify Tyler's learning disabilities. Absent such testing, one could not conclude whether the program would benefit Tyler. In this regard, Ms. Barnes' testimony is credited.

12. Apart from noting the absence of any reliable indicator in the record to demonstrate that the program would benefit Tyler, Ms. Barnes also noted that all school systems offer instruction in the same areas. Ms. Barnes further noted that under Title 20, United States Code, Chapter 33, the Individuals with Disabilities Education Act (IDEA), school districts, such as those in Florida, are required to provide a free appropriate education for children with disabilities. Such program includes appropriate testing to identify any disabilities, and the preparation of an individual education plan (IEP) to address any disabilities, including the need for any special accommodations. Again, Ms. Barnes' testimony is credited.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

14. Pertinent to this case, Section 766.31(1), Florida Statutes, provides that where, as here, a claim for compensation has been approved, the claimants are entitled to "an award providing compensation for the following items relative to such injury:"

    1. Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically

       necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include:

       
       

       1. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.

       
       

       * * *

       
       

       Expenses included under this paragraph shall be limited to reasonable charges prevailing in the same community for similar treatment of injured persons when such treatment is paid for by the injured person.

       
       

       In this case, NICA has not suggested the charges for attending the program are unreasonable. Accordingly, the reasonableness of the charges is not at issue, and need not be further addressed.

       What remains at issue is whether the program is "medically necessary and reasonable" and, if so, whether the expense for the program is excluded from coverage because Tyler is entitled to receive such services under the laws of the State of Florida or the Federal Government.

15. Here, Petitioners contend that Tyler currently needs to attend the Lindamood-Bell program, and that he is entitled to such habilitative and training service under Section 766.31(1)(a), Florida Statutes. As the claimants, Petitioners bear the burden to demonstrate that such program is a medically necessary and reasonable habilitative and training service. See Balino v. Department of Health and Rehabilitative Services, 348

    So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.") See also Derius v. Allstate Indemnity Company, 723 So. 2d 271 (Fla. 4th DCA 1998)(Reasonableness and medical necessity are essential elements of an insured's case to recover personal injury protection benefits.); Winn Dixie Stores, Inc. v. Frank, 665 So. 2d 271 (Fla. 1st DCA 1995)(Workers' compensation claimant has burden to establish that the services claimed are medically necessary.) Conversely, NICA bears the burden to demonstrate that the requested service is available from the State of Florida or the Federal Government and, therefore, pursuant to Section 766.31(1)(a)1, Florida Statutes, excluded from coverage. See Balino v. Department of Health and Rehabilitative Services, supra; Peninsular Life Ins., Co. v. Hanratty, 281 So. 2d 610 (Fla. 3d DCA 1973)(Burden of proof was upon insurer to prove, because of an exclusion in the policy, there was no coverage.)

16. As the first step in resolving a claim for expenses, it is necessary to resolve whether the expenses claimed are "medically necessary and reasonable . . . habilitative and training . . . care and services," as required by coverage under the Plan. However, the Plan does not specifically define the words "necessary," "reasonable," "habilitative," or "training."

17. When not specifically defined, "words of common usage, when used in a statute should be construed in their plain and ordinary sense." Citizens of State v. Public Service Com'n, 425 So. 2d 534, 542 (Fla. 1982). Here, with regard to the words "habititative" (a word form of "habilitate," commonly understood to mean "To impart an ability or capacity to," "to enable") and "training" (a word form of "train;" commonly understood to mean "To make proficient with specialized instruction and practice"), no difficulty is confronted. The American Heritage College Dictionary, Fourth Edition (2002). However, common words such as "necessary" and "reasonable" are susceptible to various meanings. On this point, Black's Law Dictionary (5th Ed. 1979), in addressing the definition "necessary," notes:

    This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought. It is an adjective expressing degrees, and may express mere convenience or that which is indispensable or an absolute physical necessity. It may mean something which in the accomplishment of a given object cannot be dispensed with, or it may mean something reasonably useful and proper, and of greater or lesser benefit or convenience, and its force and meaning must be determined with relation to the particular object sought.

    Black's Law Dictionary further defines "reasonable" as:

    
    

    Fair, proper, just, moderate, suitable, under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.

    
    

18. Confronted with a similar situation under the No-Fault Law, which failed to define necessary medical services, the court in Derius v. Allstate Indemnity Company, 723 So. 2d 271, 274 (Fla. 4th DCA 1998), resolved the issue, as follows:

    Derius is correct that the PIP statute does not define "necessary medical . . . services." That very language has been a part of the statute since it was enacted in 1971. Ch. 71-252, § 7, at 1359, Laws of Fla. In Palma v. State Farm Fire & Cas. Co., 489 So. 2d 147, 148-49 (Fla. 4th DCA 1986), we

    observed that in determining what constitutes a "necessary medical service, the statute is construed "liberally in favor of the insured."

    
    

    * * *

    
    

    Whether a given medical service is "necessary" under section 627.736(1)(a) is a question of fact for the jury. Donovan v.

    State Farm Mut. Auto. Ins. Co., 560 So. 2d 330, 331 (Fla. 4th DCA 1990), held that a plaintiff could establish both the reasonableness of charges and the necessity of a medical service without expert testimony. Other cases have noted that the "necessity" of a medical service may also be proven through expert testimony. See Farmer

    v. Protective Cas. Ins. Co., 530 So. 2d 356

    (Fla. 2d DCA 1988); Banyas v. American Mut. Fire Ins. Co., 359 So. 2d 506, 507 (Fla. 1st DCA 1978). The current state of the law is that the issue of necessity in a PIP case is decided by factfinders on a case by case basis, depending on the specific evidence introduced at trial and the arguments of counsel. The absence of a specific statutory definition accords each judge or jury broad discretion in arriving at a decision.

    
    

    We do not think it is proper to require further definition of a term that the legislature has left as is for 27 years. The legislature is capable of defining "medically necessary" or "palliative care" where it chooses to do so. See §§ 440.13(1)(m) and (o), Fla. Stat. (Supp. 1994). By opting not to define the phrase "necessary medical . .

    . services" with precision, the legislature has created a litigation model that vests great discretion in the factfinder, with the potential that different judges and juries will arrive at different results on almost identical facts. If a court were to require in every case a specific definition of a phrase that the legislature has left open, it would be rewriting each of those statutes and altering the dynamics of trial, without any indication that such a result was one that the legislature intended.

    
    

    Similarly, in State Farm Mutual Automobile Insurance Co. v. Sestile, 821 So. 2d 1244 (Fla. 2d DCA 2002), the court resolved that, with regard to the No-Fault Law, the word "reasonable," as used in the phrase "reasonable expenses for necessary medical

    . . . services," should also not be further defined.

    
    

    § 627.736(1)(a), Fla. Stat. (1995).

    
    

19. Considering the provisions and purposes of the Plan, its similarities to the No-Fault law, and the foregoing

    authorities, it is resolved that in determining what constitutes a medically necessary and reasonable habilitative service, the Plan is to be construed liberally in favor of the claimant, and that the necessity or reasonableness of a service be "decided . .

    . on a case by case basis, depending on the specific evidence introduced at trial." Derius v. Allstate Indemnity Company, 723 So. 2d at 274.

20. Applying the foregoing standards to the facts of this case compels the conclusion that, under certain circumstances, the Lindamood-Bell program could qualify as a "medically necessary and reasonable . . . habilitative and training . . . care and service." However, since the proof does not reliably demonstrate that the program will benefit Tyler, it does not qualify on the facts of this case. Moreover, if qualified, the proof demonstrates that reimbursement is excluded under the Plan because Tyler is entitled to receive the same or similar services under the laws of the State of Florida or the Federal Government.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Petitioners' request that NICA pay for Tyler to attend the Lindamood-Bell program is denied.

DONE AND ORDERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003.

ENDNOTES

1/ All citations are to Florida Statutes (2003) unless otherwise indicated.

2/ Petitioners' Exhibit 2 was filed post-hearing and, there being no objection, received into evidence.

COPIES FURNISHED:

(by certified mail)

Celia Lampert

4949 Marbrisa Drive, Unit 1304

Tampa, Florida 33624

Wilbur E. Brewton, Esquire Roetzel & Andress, LPA

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32308

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v.

Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-002662N

Orders for Case No: 97-002662N