STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN ALSTON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4674

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on March 21, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: James C. Mahorner

Attorney-at-Law Post Office Box 682

Tallahassee, Florida 32302

For Respondent: Andrea R. Bateman

Attorney-at-Law

Department of Administration Room 438, Carlton Building Tallahassee, Florida 32399-1550

ISSUE

The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.

BACKGROUND AND PROCEDURAL MATTERS

Petitioner, Melvin Alston, is the insured under the State Health Plan, and this action is brought by his widow, Doris Alston, seeking insurance coverage for services received by Melvin Alston at Miracle Hill Nursing Home. Petitioner presented the testimony of William R. Seaton and Doris Alston. Petitioner's Exhibits 1-3 were admitted in evidence. Petitioner was granted leave to file two late exhibits: Excerpts from the file of Blue Cross/Blue Shield of Florida, Inc., marked as Petitioner's Exhibit 5 and filed on April 5, 1988, and the Deposition of C.E. Richardson, M.D., marked as Petitioner's Exhibit 6 and filed on April 25, 1988.

Respondent, Department of Administration (DOA), presented the testimony of William R. Seaton and Linda Putnam, and had Respondent's Exhibits 1-3 admitted in evidence.

The transcript of the proceedings was filed on April 5, 1988. Respondent's proposed findings of fact and conclusions of law were filed on May 5, 1988.

Petitioner's proposed findings of fact and conclusions of law were filed on May 6, 1988. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985.

   
   

2. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976.

   
   

3. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit.

   
   

4. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home.

   
   

5. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician.

   
   

6. Alston received the same level of care at Miracle Hill Nursing Home.

   
   

7. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse.

   
   

8. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received.

   
   

9. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of

   Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate.

   
   

10. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document.

    
    

11. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care.

    
    

12. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed.

    
    

13. The pertinent provisions of the benefit document of the State Health Plan are as follows:

    
    

    I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed

    solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications.

    * * *

    I.N. "Hospital", means a licensed institution engaged in providing medical care and

    treatment to a patient as a result of illness or accident on an inpatient/outpatient

    basis . . . and which fully meets all the tests set forth in ., 2., and 3.

    below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged.

    * * *

    I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services

    where specialized health care knowledge must be applied in order to attain the desired medical results.

    * * *

    I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered

    custodial . . . .

    * * *

    II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing

    care . . . subject to the following:

    1. The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility;

    2. Transfer to a skilled nursing facility is because the insured requires

       skilled care for a condition . . . which was treated in the hospital;

    3. The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital;

    4. A physician must certify the need for skilled nursing care . . . and the

    insured must receive such care or services on a daily basis; . . .

    6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year.

    * * *

    VII. No payment shall be made under the Plan for the following:

    * * *

    L. Services and supplies provided

    by . . . a skilled nursing facility or

    an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged.

    * * *

    N. any services in connection with custodial care . . . .

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

15. The burden of proof is on the party asserting the affirmative of an issue. Here that burden is on Petitioner to prove by a preponderance of the competent, substantial evidence that the services provided to Melvin Alston at Miracle Hill Nursing Home are covered under the benefit document of the State Health Plan. Petitioner has failed to sustain this burden in several regards. Specifically, Petitioner has failed to prove that Alston was receiving skilled nursing care at either Goodwood Manor or Miracle Hill or that Alston was transferred to a skilled nursing facility immediately following discharge from a hospital.

    
    

16. In applying the various provisions of the benefit document, it is concluded that Alston received custodial care at both Goodwood Manor and Miracle Hill pursuant to Section I.G.; that neither Goodwood Manor nor Miracle Hill provided skilled nursing care to Alston pursuant to Section I.AH.; and that the services provided to Alston at both Goodwood Manor and Miracle Hill are not covered skilled nursing facility services pursuant to Section II.E. In this regard no benefits are due because the requirements of Section II.E.1, 2, 3, and

4 are not met. Finally, benefits are specifically excluded under section VII.L. and N. of the benefit document.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order

denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home.

DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1988.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston

1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended

Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected.

2. Proposed finding of fact 4 is irrelevant to the resolution of this matter.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13).

   
   

2. Proposed findings of fact 2, 3, and 16 are unnecessary.

   
   

3. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant.

   
   

4. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order.

2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence.

COPIES FURNISHED:

James C. Mahorner Attorney-at-Law

P. O. Box 682

Tallahassee, Florida 32301

Andrea Bateman Attorney-at-Law

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis Villa, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-004674

Orders for Case No: 87-004674