STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMMAR AL BATHA, as Personal Representative of the Estate of ABDEL-KADER AL BATHA, deceased, and SHAHIRA ALSHAMI,

individually,

vs.

Petitioner,

Case No. 16-5766MTR

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

SUMMARY FINAL ORDER

This cause came on for consideration upon a Motion for Summary Final Order filed by Respondent, Agency for Health Care Administration (AHCA), on November 30, 2016.

STATEMENT OF THE ISSUE

On October 3, 2016, Petitioners, Ammar Al Batha, as Personal Representative of the Estate of Abdel-Kader Al Batha, deceased, and Shahira Alshami, individually, filed a Petition to Determine Amount Payable to Agency for Health Care Administration in Satisfaction of Medicaid Lien (Petition) with the Division of Administrative Hearings (DOAH) pursuant to section 409.910(17)(b), Florida Statutes (2016).1/

The final hearing was scheduled for December 14, 2016. On November 30, 2016, Respondent filed a Motion for Summary Final Order. In the Motion for Summary Final Order, Respondent asserted that Petitioners, as a matter of law, cannot successfully challenge the amount payable to AHCA under section 409.910(17)(b) because Petitioners are not the Medicaid recipients. On December 2, 2016, Petitioners filed a Motion for Continuance and Extension of Time to Respond to Motion for Summary Final Order. That motion was granted by the undersigned on December 6, 2016, and the hearing scheduled for December 14, 2016, was canceled.

On December 12, 2016, Petitioners filed an Objection to Respondent’s Motion for Summary Final Order, asserting that a Medicaid recipient’s right to challenge the payment of a Medicaid lien through DOAH does not die with the recipient, and the recipient’s representative is entitled to challenge the amount payable to AHCA under the procedure in section 409.910(17)(b).

Both Respondent’s Motion for Summary Final Order and Petitioners’ Objection to Respondent’s Motion for Summary Final Order have been duly considered in preparation of this Summary Final Order.

FINDINGS OF FACT

Based on the record as a whole, the following Findings of Fact are made:

1. On July 2, 2015, Abdel-Kader Al Batha (Mr. Al Batha) was involved in a car accident in Broward County, Florida. In this accident, Mr. Al Batha suffered catastrophic physical and neurological injuries, and, as a result, died on July 20, 2015.

   Mr. Al Batha was survived by his spouse, Shahira Alshami (Ms. Alshami).

2. Mr. Al Batha’s medical care related to his injury was paid by Medicaid, and AHCA, through the Medicaid program. Medicaid provided $143,663.18 in benefits associated with

   Mr. Al Batha’s injury. This $143,663.18 represented the entire claim for past medical expenses.

3. Mr. Al Batha’s funeral expenses were in the amount of

   
   

   $3,850.

   
   

4. As a result of Mr. Al Batha’s injury and death,

   
   

   Ms. Alshami suffered economic and non-economic damages, which are defined and limited by the Florida Wrongful Death Act to loss of support, services, companionship, and protection from the date of injury, as well as her mental pain and suffering from the date of injury per section 768.21, Florida Statutes. In addition, the Estate of Abdel-Kader Al Batha (the Estate) suffered economic damages, which are defined and limited,

   
   

   
   

   by the Florida Wrongful Death Act, to medical expenses, funeral expenses, and loss of net accumulations per section 768.21(6).

5. Altogether, the total combined monetary value of

   
   

   Ms. Alshami and the Estate’s individual damages, and the value a jury would assign to these damages, are no less than $2,500,000 to $5,000,000.

6. Ammar Al Batha, as the Personal Representative of the Estate, brought a wrongful death action to recover both the individual statutory damages of Ms. Alshami, as well as the individual statutory damages of the Estate, against the driver/owner of the vehicle that caused the accident (Defendant).

7. While Ms. Alshami and the Estate’s damages have an exceedingly high monetary value in excess of $2,500,000 to

   $5,000,000, there were significant limitations to recovering the full value of these damages from the Defendant associated with disputed facts, liability, and policy insurance limits of the primary responsible parties.

8. Based on these significant limiting factors, the wrongful death action was settled through a confidential settlement.

9. While settlement was appropriate given the limiting factors, that does not negate that in the settlement,

   
   

   Ms. Alshami and the Estate are not being fully compensated for all their damages, and they are only receiving a fraction of the total monetary value of all their damages.

10. Understanding that the settlement does not fully compensate Ms. Alshami and the Estate for all their damages, and in the settlement they are only receiving a fraction of the total monetary value of all the damages, including only a fraction of the $143,663.18 claim for past medical expenses, the parties to the settlement made an allocation to the claim for past medical expenses. This allocation was based on the calculation of the ratio the settlement bore to the total monetary value of all damages.

11. Using the conservative valuation of all damages of

    
    

    $2,500,000, the parties calculated that Ms. Alshami and the Estate were receiving 44.5 percent of the total monetary value of all their damages in the settlement, and accordingly they were receiving in the settlement 44.5 percent, or $63,930.12, of their $143,663.18 claim for past medical expenses.

12. In making this allocation, the parties agreed that:

    
    

    1. The settlement does not fully compensate Mr. Al Batha’s surviving spouse and the Estate of Abdel-Kader Al Batha for all the damages they have suffered and the settlement only compensates them for a fraction of the total monetary value of all the damages;

       
       

    2. The damages have a value in excess of

       $2,500,000;

       
       

    3. The claim for past medical expenses was

       $143,663.18; and

       
       

    4. Allocation of the $63,930.12 of the settlement to past medical expenses, and the remainder of the settlement toward the satisfaction of claims other than the past medical expenses, is reasonable and proportionate based on the same ratio this settlement bears to the total monetary value of all the damages.

       
       

13. The parties memorialized the allocation of $63,930.12 of the settlement to past medical expenses in the General Release (Release). The Release stated:

    Although it is acknowledged that this settlement may not fully compensate Releasing Party for all of the damages they have allegedly suffered, this settlement shall operate as a full and complete Release as to Released Parties without regard to this settlement only compensating Releasing Party for a fraction of the total claimed monetary value of their alleged damages.

    The parties agree that Releasing Party’s alleged damages may have a value in excess of $2,500,000, of which approximately

    $143,663.18 represents the claimed amount for past medical expenses. Given the facts, circumstances, and nature of Releasing Party’s damages and this settlement, the parties have agreed to allocate $63,930.12 of this settlement to Releasing Party’s claim for past medical expenses and allocate the remainder of the settlement towards the satisfaction of claims other than past medical expenses. This allocation is a reasonable and proportionate allocation based on the same ratio this settlement bears to the claimed total monetary value of all Releasing Party’s damages.

    
    

14. As a condition of Mr. Al Batha’s eligibility for Medicaid, Mr. Al Batha, before his death, assigned to AHCA his right to recover from liable third parties, medical expenses paid by Medicaid.

15. During the pendency of the wrongful death action, AHCA was notified of the action, and AHCA, through its collections contractor, Xerox Recovery Services, asserted a $143,663.18 Medicaid lien against the Estate’s cause of action and settlement of that action.

16. The attorney handling the wrongful death claim notified AHCA of the settlement by letter and provided AHCA with a copy of the executed General Release. The letter explained that the damages had a value in excess of $2,500,000, and the settlement represented only a 44.5 percent recovery of the

    $143,663.18 claim for past medical expenses, or $63,930.12. The letter requested AHCA to advise as to the amount AHCA would accept in satisfaction of the $143,663.18 Medicaid lien.

17. AHCA calculated its payment pursuant to the formula in section 409.910(11)(f) based on the gross settlement, which includes those funds compensating Ms. Alshami for her individual claim for pain and suffering and loss of support, services, and companionship. This resulted in AHCA demanding payment for the full amount of the Medicaid lien, or $143,663.18.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case pursuant to sections 120.569, 120.57(1) and 409.910(17), Florida Statutes.

19. Respondent is the agency authorized to administer Florida’s Medicaid program. § 409.902, Fla. Stat.

20. AHCA has an “automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable, upon the collateral, as defined in s. 409.901.”

    § 409.910(6)(c), Fla. Stat.

    
    

21. This lien is “iron-clad” and no settlement impairs the lien. See Nunez v. Ag. for Health Care Admin., Case No. 16- 2084MTR, FO at 20 (Fla. DOAH Nov. 30, 2016); see also §

    409.901(13), Fla. Stat. (stating that “no settlement, agreement, consent decree, trust agreement, annuity contract, pledge, security arrangement, or any other device . . . entered into or consented to by the recipient or his or her legal representative shall impair the agency’s rights.”).

22. Under Federal law, only living Medicaid recipients are protected from the Medicaid lien. Nunez, Case No. 16-2048MTR FO

    at 79; see also 42 U.S.C. § 1396p(a)(1)(2012)(stating that “[n]o

    
    

    lien may be imposed against the property of any individual prior

    
    

    to his death on account of medical assistance paid or to be paid on his behalf under the State plan,” except under limited circumstances)(emphasis added).

23. This anti-lien protection does not extend to the estate of a Medicaid recipient, or to a beneficiary in a wrongful death action. This was recently explained by the Fourth District Court of Appeal in Goheagan v. Perkins, 197 So.

    3d 112, 120 (Fla. 4th DCA 2016):

    
    

    The plain language of section 1396p(a)(1) clearly reflects Congress’ intent that the anti-lien statute apply only to recoveries by Medicaid recipients who are living when the settlement or judgment against the third party is obtained, and not to recoveries made by an estate or beneficiary in a wrongful death action. The anti-lien statute does not apply to preempt the state statute in all cases, and thus does not prohibit a state from imposing a lien against the deceased recipient’s recovery from third parties for the full amount paid for medical expenses.

    
    

24. The Goheagan court went on to note why it believed

    
    

    that Congress may have chosen to limit the statute’s protection to living Medicaid recipients instead of extending the protection to the estate of the recipient and any beneficiaries:

    We can envision several valid reasons why a different recovery framework might be applied to a survival action as opposed to a wrongful death action. In a survival action, the need to provide greater protection to a Medicaid recipient's

    
    

    personal assets could be based upon a desire to maximize the recipient's available assets received from third parties available to pay non-medical or other needs. This would further a legitimate government interest by allowing such recipients to keep more of their property, including any payments from third parties received during their lifetime, with the goal of helping them maintain their standard of living as long as possible without the need to rely on additional forms of public assistance. Such concerns do not apply when assets or third party payments are received by an estate or its beneficiaries rather than by a living person.

    
    

    Also, while a recipient is still alive, they may incur unexpected or uncovered medical expenses in the future. Allowing recipients to keep more unencumbered property increases the likelihood that those needs can be met from the recipient's available resources.

    Upon death, a recipient no longer incurs medical or non-medical expenses, and the amount of expenditures will be fixed.

    
    

    The plain wording of the anti-lien statute evinces Congress' intent to protect the needs of living Medicaid recipients rather than various third parties. By allowing states to recover these expenditures, Congress also clearly intended to protect the public fisc over any derivative interests that might inure to the benefit of estates, beneficiaries, or survivors of a decedent. As the Court has stated in the past, the judiciary's "task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, 'that language must ordinarily be regarded as conclusive.'" Griffin v.

    Oceanic Contractors, Inc., 458 U.S. 564,

    570, 102 S. Ct. 3245, 73 L. Ed. 2d 973

    (1982) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108,

    100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980)).

    
    

    Our decision today gives effect to Congress' will, in which the state's financial resources were clearly a major consideration, just as they are for state courts on such issues as well.

    
    

    Goheagan, supra at 121-22.

    
    

25. Section 409.910(6)(a) and (b)2. prohibit the automatic Medicaid lien from being reduced because of equitable considerations. If AHCA has not participated in, or approved a settlement, section 409.910(17)(b) contains an administrative procedure to determine whether a lesser portion of a total recovery should be allocated as reimbursement for medical expenses in lieu of the amount calculated by application of the formula in section 409.910(11)(f).

26. Section 409.910(17)(b) provides that:

    
    

    A recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f) by filing a petition under chapter 120 within 21 days after the date of payment of funds to the agency or after the date of placing the full amount of the third-party benefits in the trust account for the benefit of the agency pursuant to paragraph

    (a) . . . . In order to successfully challenge the amount payable to the agency, the recipient must prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f) or that Medicaid provided a lesser amount

    
    

    of medical assistance than that asserted by the agency.

    
    

    (emphasis added).

    
    

27. Section 409.910(17)(b) thus makes clear that the formula set forth in subsection (11) constitutes a default allocation of the amount of a settlement that is attributable to medical costs, and sets forth an administrative procedure for adversarial testing of that allocation. See Harrell v. Ag. for Health Care Admin., 143 So. 3d 478, 480 (Fla. 1st DCA

    2014)(adopting the holding in Riley that petitioner “should be afforded an opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses,” and quoting Roberts v.

    Albertson’s, Inc., 119 So. 3d 457, 465-466 (Fla. 4th DCA 2012)).

    
    

28. However, the plain language of section 409.910(17)(b) is clear and unambiguous that this administrative procedure is only available to “a recipient.” See § 409.910(17)(b), Fla.

    Stat. (providing that “[a] recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f).”). The statute does not open the opportunity of adversarial testing of the allocation formulated under section 409.910(11)(f) to the recipient’s estate, the personal

    
    

    representative of the recipient’s estate, or the recipient’s surviving spouse. Nunez, supra at 91 (stating that the “administrative procedure for determining whether a lesser portion of a total recovery should be allocated as reimbursement for medical expenses in lieu of the amount calculated by application of the formula in section 409.910(11)(f) is not available” to the personal representatives of the estate). The plain language of the statute is dispositive. See Lee Cnty.

    Elec. Coop. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002)(stating that “[w]hen a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.”).

29. Even if the language in section 409.910(17)(b) was not clear and unambiguous, the same conclusion could be reached using the expressio unius est exclusio alterius canon of

    construction. The Florida Legislature expressly made section 409.910(17)(a) applicable to a wider section of people than just the “recipient” in section 409.910(17)(b). See

    § 409.910(17)(a), Fla. Stat. (providing that “[a] recipient or his or her legal representative or any person representing, or

    acting as agent for, a recipient or the recipient’s legal representative, who has notice . . . who receives any third-

    party benefit or proceeds for a covered illness or injury,

    
    

    must . . . pay the agency the full amount of the third-party benefits, but not more than the total medical assistance provided by Medicaid, or place the full amount of the third- party benefits in an interest-bearing trust account for the benefit of the agency pending an administrative determination of the agency’s right to the benefits under this subsection.”)(emphasis added).

30. This conclusion is further supported in that “[i]t is a general canon of statutory construction that, when the legislature includes particular language in one section of a statute but not in another section of the same statute, the omitted language is presumed to have been excluded intentionally.” State v. E.M., 141 So. 3d 682, 685 (Fla. 4th DCA 2014).

31. Since Mr. Al Batha is deceased, and neither of the Petitioners are a Medicaid “recipient” within the meaning of chapter 409, the administrative procedure laid out to contest the amount designated as recovered medical expenses payable to the agency in section 409.910(17)(b) is not available in the instant case.

32. While this outcome may seem inequitable, the Florida Legislature has clearly indicated that equity cannot serve as a basis for reducing the Medicaid lien. See § 409.910(6)(a) &

    (6)(b)2., Fla. Stat.

    
    

33. Also, the undersigned is not at liberty to rewrite section 409.910 in order to reach a desired result. See generally State v. Jett, 626 So. 2d 691, 693 (Fla. 1993)(stating

“[w]e agree with the majority below that this language is unambiguous. It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language. While the dissent’s view below has much to commend it, we find that the decision whether or not to engraft that view into the Florida Statutes is for the legislature. We trust that if the legislature did not intend the result mandated by the statute’s plain language, the legislature itself will amend the statute at the next opportunity.”); Weber v. Dobbins, 616 So. 2d 956, 959-60 (Fla. 1993)(explaining that “[t]he reason for the rule that courts must give statutes their plain and ordinary meaning is that only one branch of government may write laws.

Just as a governor, who chooses to veto a bill, may not substitute a preferable enactment in its place, courts may not twist the plain wording of statutes in order to achieve particular results. Even when courts believe the legislature intended a result different from that compelled by the unambiguous wording of a statute, they must enforce the law according to its terms. A legislature must be presumed to mean what it has plainly expressed, and if an error in interpretation

is made, it is up to the legislature to rewrite the statute to accurately reflect legislative intent.”). (Barkett, C.J., dissenting)(citations omitted).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by Ammar Al Batha, as Personal Representative of the Estate of Abdel-Kader Al Batha, deceased, and Shahira Alshami, individually, is dismissed with prejudice.

DONE AND ORDERED this 30th day of January, 2017, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2017.

ENDNOTE

1/ Unless stated otherwise, all statutory references will be to the 2016 version of the Florida Statutes.

COPIES FURNISHED:

Alexander R. Boler, Esquire Xerox Recovery Services Suite 300

2073 Summit Lake Drive Tallahassee, Florida 32317 (eServed)

Floyd B. Faglie, Esquire Staunton and Faglie, P.L.

189 East Walnut Street Monticello, Florida 32344 (eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Justin Senior, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Kim Kellum, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 16-005766MTR

Orders for Case No: 16-005766MTR