STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. GOMEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2595

) DEPARTMENT OF ADMINISTRATION, ) OFFICE OF STATE EMPLOYEES' )

INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 3, 1986, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael J. Gomez, pro se

2404 Harbor Drive

Tallahassee, Florida 32303

For Respondent: Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

PROCEDURAL STATEMENT

On February 12, 1985, the Petitioner was notified, on behalf of the Respondent, by Blue Cross and Blue Shield of Florida that it had decided that the Petitioner was not entitled to reimbursement of expenses incurred by the Petitioner's wife for manipulation treatments in excess of 26 treatments. On April 1, 1985, the Petitioner submitted a request for a formal administrative hearing to contest the proposed denial of benefits. On July 7, 1986, the Respondent requested the assignment of a Hearing Officer to conduct a formal administrative hearing.

At the final hearing, the Petitioner testified on his own behalf and submitted Petitioner's exhibits 1 and 2. The exhibits were accepted into evidence. The Respondent presented the testimony of Tylee Rowe and the deposition testimony of David L. Hartz, D.C.

The Respondent timely filed a proposed recommended order which contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order. Additionally, attached to this Recommended Order is an Appendix which indicates where proposed

findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.

ISSUE

Whether the Petitioner is entitled to reimbursement for medical treatments received by his wife for 4 manipulation treatments received in 1983?

FINDINGS OF FACT

1. At all times pertinent hereto, the Petitioner was an insured employee under the State of Florida Employees' Group Health Insurance Plan, as provided in Section 110.123, Florida Statutes.

   
   

2. Nora Gomez, the Petitioner's wife, is entitled to participate in the Plan as an eligible dependent.

   
   

3. Mrs. Gomez first visited David L. Hartz, a chiropractic physician on August 2, 1983.

   
   

4. Dr. Hartz's office is located at 1610 West Plaza Drive, Tallahassee, Florida.

   
   

5. Dr. Hartz treated Mrs. Gomez primarily for upper back and neck pain.

   
   

6. Between August 2, 1983, and December 14, 1983, Dr. Hartz treated Mrs. Gomez 33 times. Initially, Mrs. Gomez received chiropractic manipulations 3 times per week. Visits were subsequently reduced to 2 times a week and from November 1, 1983, until December 14, 1983, when treatments stopped, her treatments were reduced to once a week.

   
   

7. Twenty-nine of the 33 visits received by Mrs. Gomez have been paid by the Respondent. The Respondent is not seeking to be reimbursed for payments made to the Petitioner in excess of 26.

   
   

8. The Respondent has refused to pay for 4 of the visits.

   
   

9. The Petitioner was charged $18.00 per visit for Mrs. Gomez's treatments.

   
   

10. The Respondent has refused to pay the Petitioner a total of $72.00 (4 visits x $18.00).

    
    

11. Mrs. Gomez received her 26th treatment on November 1, 1983. Mrs. Gomez's condition at that time was, according to Dr. Hartz, as follows:

    
    

    I show that she had improved considerably over her initial findings but she still had some persistent pain in her neck and upper back and some inflammation, some nerve roots in her neck and some persistent muscle weakness.

    
    

    Deposition testimony of Dr. Hartz, page 15, lines 18-21.

12. Dr. Hartz also indicated that he believed that Mrs. Gomez "could still improve some past that point." Deposition testimony of Dr. Hartz, page 11, lines 12-13.

    
    

13. Based upon Dr. Hartz's testimony, Mrs. Gomez's problem was of a type which could be eventually treated on a "periodic supportive type treatment, on a periodic nature." Dr. Hartz was trying to treat Mrs. Gomez's problem, however, during 1983 to a point where she could receive such treatment. She did not, however, continue the treatments long enough to reach that point because of the Respondent's position that only 26 treatments would be reimbursed by the Petitioner's insurance.

    
    

14. The Respondent reimburses for rehabilitative therapy but not for maintenance therapy under the State Plan. The Respondent determined that Mrs. Gomez's treatments after November 1, 1983 (her 26th visit) were for maintenance and not rehabilitative therapy because the Respondent determined that her condition stabilized. Therefore, the Respondent refused to make further payments.

    
    

15. Dr. Hartz did indicate that Mrs. Gomez reached a point where she had persistent pain that would feel better for a while and then would return, and therefore, he "either had a choice to extend her treatment and let her hurt or treat her and keep her feeling as good as possible." This statement and the rest of Dr. Hartz's testimony is not sufficient to conclude, however, that Mrs. Gomez stabilized as of November 1, 1983, and therefore was receiving maintenance treatment only after that date. Dr. Hartz did not, however, based upon all his testimony, believe that Mrs. Gomez had reached a point during her treatment in 1983 where her treatment was in the nature of maintenance only. Dr. Hartz was still treating Mrs. Gomez through her last visit in 1983 in an effort to correct her condition sufficiently for her to receive only maintenance treatments.

    
    

16. The 4 visits in 1983 for which reimbursement has not been made, were part of Dr. Hartz's effort to get Mrs. Gomez to a point where she would only need maintenance type treatment. The visits were in the nature of rehabilitative therapy, for which the Petitioner is entitled to reimbursement.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has juris-diction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).

    
    

18. The Secretary of Administration is responsible for administering the State's group insurance program and determining benefits and required contributions. Section 110.123(5), Florida Statutes. The Respondent's determination of benefits does not constitute a rule under Section 120.57(15), Florida Statutes. Id.

    
    

19. Benefits payable under the State of Florida Employees' Group Health Insurance Plan have been set out in the Respondent's Benefit Document which provides, in pertinent part, as follows:

    
    

    III. COVERED MEDICAL - SURGICAL EXPENSES

    
    

    A. 100 percent of the actual charge for medi- cally necessary inpatient/outpatient physician or physical therapist expenses shall be paid

    when ordered by a physician for the treatment of an insured as a result of a covered accident or illness subject to

    the one hundred dollar ($100.00) deductible per insured; however, such payment shall not exceed the maximum amount permitted under the AFS (approved fee schedule).

    
    

20. The terms "medically necessary" are defined in the Benefit Document and Rule 22K-1.103(40), Florida Administrative Code, 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 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.

    
    

21. The Respondent has argued that the Petitioner has failed to meet his burden of proof to prove that the unreimbursed medical payments were medically necessary for Mrs. Gomez. See Tropical Park, Inc., v. Ratliff, 97 So.2d 169 (Fla. 4th DCA 1974). It is true that at the final hearing the Petitioner primarily argued that he had received similar treatments to those received by his wife for which he received reimbursement and therefore he should also receive reimbursement for all of his wife's treatments. The Respondent is correct in arguing that this argument does not support a finding that the Petitioner is entitled to reimbursement. The facts, however, do prove that all of Mrs. Gomez's treatments were "medically necessary."

    
    

22. According to Dr. Hartz's testimony, Dr. Hartz believed that Mrs. Gomez should receive treatments until she reached a point where Mrs. Gomez would only need to receive "periodic supportive type treatment, on a periodic nature." Although Dr. Hartz's testimony is not totally clear, it has been concluded that Dr. Hartz did not believe that Mrs. Gomez had reached that point on her 26th visit or even her last visit. Once Mrs. Gomez reached that point, if she had continued with her treatment, any further visits would clearly have been in the nature of maintenance therapy and not "medically necessary." Mrs. Gomez's treatments up to that point are considered medically necessary by Dr. Hartz as those terms are defined by the Respondent.

    
    

23. Based upon the foregoing, the Petitioner is entitled to reimbursement for all 33 of Mrs. Gomez's treatments in 1983.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent reimburse the Petitioner $72.00 for the

1983 treatments received by the Petitioner's wife for which reimbursement has been refused.

DONE AND RECOMMENDED this 3rd day of December, 1986, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9673

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2595

The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ."

Paragraph Number of Petitioner's Proposed Findings of Fact:

1. Accepted in RO 1-2.

2. Accepted in RO 3-4.

3. Accepted in RO 5.

4. Accepted in RO 6.

5. Accepted in RO 6-7.

6. Accepted in RO 7.

7. Accepted in RO 9-10.

8. Accepted in RO 11 and 15. The quotation of Dr. Hartz's testimony contained in the last sentence of this proposed findings of fact is taken slightly out of context. See RO 15.

9. Accepted in RO 14.

10. This proposed finding of fact is rejected as contrary to the weight of the evidence. See RO 15-16.

COPIES FURNISHED:

Michael J. Gomez 2404 Harbor Drive

Tallahassee, Florida 32303

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Gilda Lambert, Secretary

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 86-002595

Orders for Case No: 86-002595