STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAUD E. LEIBY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4186

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF STATE EMPLOYEES' ) INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Sarasota, Florida on September 21, 1989.

APPEARANCES

For the Petitioner: Claud E. Leiby, pro se

321 East Lake Drive Sarasota, Florida 34232

For the Respondent: Augustus D. Aikens, Jr., Esquire

General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

STATEMENT OF THE ISSUES

The issue for consideration in this hearing was whether Petitioner was entitled to insurance coverage reimbursement for items claimed as a result of his son's hospitalization at a specialty hospital in April, 1989.

PRELIMINARY STATEMENT

By letter dated April 10, 1989, the Petitioner herein, Claud E. Leiby, requested the Division of Employees' Insurance's, (Division), reconsideration of its evaluation and denial of coverage for payment for services provided to his son in this case under the state's self insurance plan administered by Blue Cross/Blue Shield. On May 1, 1989, Carl Ogden, Division Director, advised Petitioner by letter that the service provided was not covered under the Group Health Self Insurance Plan and advised Petitioner of his right to seek formal hearing.

On May 22, 1989, Petitioner requested a formal hearing under Section 120.57(1), Florida Statutes, and on August 2, 1989, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated August 31, 1989, as amended on September 15, 1989, the hearing was set for Sarasota on September 21, 1989, at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of his wife, Zera Christian Leiby. Petitioner also introduced Petitioner's Exhibits 1 through 3. Petitioner's Exhibit 4 for Identification was not admitted. Respondent presented the testimony of William R. Seaton, State Benefit Administrator with the Division, and introduced Respondent's Exhibits A through E. No transcript was provided but Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Claud E. Leiby, was employed by the State of Florida and was a member of the State Group Health Self Insurance Plan. The State of Florida, Department of Administration, Division of State Employees' Insurance, is the state agency responsible for administering the Group Health Self Insurance Plan in Florida.

   
   

2. On April 5, 1989, Petitioner's son, Floyd (Chris), attempted to take his own life. Chris is hearing impaired. He is a 22 year old who was, at the time, six months away from earning his Bachelor of Science degree in Computer Engineering Technology at Tampa Technical Institute.

   
   

3. Prior to this suicide attempt in April, 1989, Chris had been seen by a psychologist who referred him to a psychiatrist. Chris had previously been seen by a psychiatrist for a drug abuse problem several years before.

   
   

4. Approximately two years ago, Chris was admitted to Palms Hospital in Sarasota, an institution covered by the insurance plan in issue. At that time, the hospital represented it would provide an interpreter for the deaf and those other specialized personnel necessary for appropriate treatment of a hearing impaired individual. However, after several days of treatment which were singularly non-beneficial because of the fact that no interpreter was provided and Chris could not lip read, the treatment was terminated and Chris was discharged. The Leibys felt, based on that experience, that appropriate service could or would not be provided at a facility covered by the plan, and as a result, when Chris attempted to take his life on April 5, 1989, did not even attempt to hospitalize him in either of the covered facilities in Sarasota County, Sarasota Palms Hospital or Sarasota Memorial Hospital. Instead, they had him admitted to Horizon Hospital in Sarasota, a psychiatric specialty hospital which is the only hospital in the area providing a program for the psychiatric treatment of the hearing impaired even though they had been advised such treatment would not be covered. Their conclusion as to the lack of availability of other qualified treatment may not have been accurate, however. Dr. Curran, director of mental health services at Memorial indicated that facility could and would provide adequate treatment for the hearing impaired. This is inconsistent with the Petitioner's prior experience.

   
   

5. The Leibys felt that due to the suicidal attempt, the situation constituted an immediate crisis. However, after several days of Chris' hospitalization at Horizon, they were advised that their coverage under the state plan would not cover the incurred expenses at that facility.

6. The Plan administrator indicated the Petitioners were not covered because of the terms of the plan which exclude services and supplies provided by a specialty institution. Further, the Division took the position that since Chris attempted to take his own life, and since the plan excludes coverage for services and supplies resulting from an intentional self-inflicted injury, it was "unlikely" reimbursement would be made even if Chris had been admitted to one of the eligible hospitals.

   
   

7. Petitioner claims that the Division's interpretation of the rule and the plan provisions constitutes a form of discrimination against the handicapped which is prohibited by federal and state law.

   
   

8. After Chris was discharged from Horizon Hospital, he had another episode while at work and was taken to a medical facility in St. Petersburg. After four days, he was released and taken to see Dr. Douglas R. Elliott, a psychiatrist, who was unable to treat him successfully without the services of an interpreter. Dr. Elliott indicated that Ms. Leiby, who acted as an interpreter on the first session, could not continue to act in that capacity, considering the issues that needed to be addressed. In the doctor's opinion, the treatment Chris received at Horizon was both necessary and beneficial.

   
   

9. The Plan brochure provided to state employees contains numerous provisions pertinent to this hearing. On Page 3, the definition of a hospital specifically includes a "specialty institution" and at page 9, the section on Limitations (on coverage) indicates, "Payment for inpatient services rendered by a hospital and/or specialty institution while confined for alcoholism or drug addiction, and/or rendered by a hospital while confined for alcohol or drug addiction or mental or nervous conditions, shall be made for not more than thirty-one (31) days of confinement during a calendar year. Specialty institutions are, in the Summary of Benefits section found on Page 6, identified as being permitted for alcohol/drug impaired employees only.

   
   

10. In the Exclusions portion, found on pages 11 and 12, services and supplies provided by a specialty institution or residential facility (with the exception of the alcohol/drug treatment for employees) are excluded as are services and supplies provided by a skilled nursing facility for the treatment of an insured for alcoholism, drug addiction, (other than for employees), or mental or nervous conditions.

    
    

11. The Plan Benefit Document itself, which was not previously provided to Petitioner, at page 24, defines a "specialty institution" as a "licensed facility providing an inpatient rehabilitation program for the treatment of persons suffering from alcohol or drug abuse or mental or nervous conditions." At Section VII L, dealing with Exclusions, "...services and supplies provided by a specialty institution, except as provided under Section II G, (treatment relating to alcoholism or drug addiction for the employee only), are excluded from coverage."

    
    

12. The Division has defined these terms as meaning, in substance, that a specialty institution is specifically excluded except when a covered employee asks approval for entry into such an institution for alcohol or drug addiction. Otherwise, they have been excluded since implementation of the plan in 1972, because of cost. If these institutions were to be included, the additional costs would, according to Mr. Seaton, mean premium rates to the participants would have to be increased.

13. The benefit document, as it exists, was constructed with the assistance of Blue Cross/Blue Shield and other consultants. It was the intent of the Department to provide services that a majority of the employees and their families need. To change the benefit document requires legislative approval.

    
    

14. The plan is not intended to deny coverage to the handicapped. An "appropriate" service was available to Chris at the time of his admission to Horizon Hospital in April, 1989 under the state plan. Further, in Mr. Seaton's opinion, since the injury was self-inflicted, even if Chris had been admitted to an eligible hospital, coverage would not have been available. This latter position is unsupportable as an improper interpretation of the relevant provision.

    
    

15. To insure cost reimbursement, Petitioner would have had to have a physician admit Chris to an acute care hospital such as Palms or Memorial, and in that case, according to Seaton, the state would have allowed up to 31 days of inpatient service.

    
    

16. Seaton indicates that Section 504 of The Rehabilitation Act of 1973, was not considered in determining benefits to be covered. In his opinion, the "majority of employee needs" were covered and handicapped employees are covered to the same degree as non-handicapped employees. Family coverage for an employee does not include provisions to cover special needs of family members. Since treatment for handicapped is covered as a matter of course, no need was seen to make specific provision for handicapped individuals. The limitations, exclusions, or benefits provided are the same for all members and are provided to the handicapped to the same extent as to the non-handicapped.

    
    

17. When asked if the patient had been initially admitted to a general hospital and thereafter referred to a specialty hospital as a matter of appropriate medical treatment by a covered provider, would that specialty admission be covered, Mr. Seaton replied, "absolutely not."

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

19. The Secretary of the Department of Administration has the responsibility for administration of the State Group Health Self Insurance Plan, and benefits and employee contributions are determined subject to legislative approval. Section 110.123(5), Florida Statutes. Such determinations do not constitute rules of the Department subject to the rule making and challenge provisions of Section 120.52.

    
    

20. In the instant case, the provisions of the plan document as outlined in the Findings of Fact, supra, clearly define what services are eligible for reimbursement, and specifically exclude "specialty institutions", except, for drug and alcohol abuse by employees. [emphasis supplied)

    
    

21. Chris Lieby is not an employee under the plan definitions. Consequently, the charges for his treatment at Horizon hospital, a specialty institution, is not reimbursable under the terms of the Plan, regardless of the fact that treatment may have been far superior to any other available in the area, due to his peculiar handicap.

22. Petitioner argues because of this that the state Plan is in violation of Section 504 of The Rehabilitation Act of 1973, (29 USCA 794) in that it does not permit the handicapped, (hearing impaired), to obtain reimbursement for the cost of the services of a specialty institution. He is mistaken.

    
    

23. The Act prevents handicapped persons from being denied the same benefits as those who are not handicapped. It does not require the expenditure of additional resources to provide services beyond those a non-handicapped individual would receive. The concept of "neutral" treatment has been upheld in cases involving the availability of medical treatment. Alexander v. Choate, 105 S.Ct. 712 (1985).

    
    

24. Applying the proper test to the case at hand, it can be seen that Chris would have been afforded the same treatment and care availability as would have been provided to the non- handicapped child of a covered state employee. That he was hearing handicapped, and that the Horizon program may have been far better than that at Palms or Memorial is regrettable but not determinative of the issue. He was not deprived of the same treatment any other patient would have received because of his handicap, and Petitioner has failed to carry his burden to show handicap discrimination.

    
    

25. Subsequent to the hearing, Petitioner submitted a letter with attached documentation relating to Chris' hospitalization for the Hearing Officer's consideration. Respondent has moved to strike this submission. That motion is denied. The material is, however, not pertinent to the legal issue at hand.

RECOMMENDATION

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

RECOMMENDED that the Petition for reimbursement for Chris' hospitalization at Horizon Hospital be denied.

RECOMMENDED this 24th day of October, 1989, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4186

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.

None submitted by Petitioner:

For the Respondent:

1.-5. Accepted and incorporated herein. 6.-7. Accepted and incorporated herein.

1. Accepted.

2. Accepted. Petitioner submitted the hospital bill subsequent to the hearing and after both parties had rested. Respondent moved to strike this evidence but the motion was denied. The amount

   of the hospital bill is now known, but in light of the Findings and Conclusions is not relevant.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Accepted except for last sentence. Petitioner's opinion is based on prior experience.

6. Accepted. This is opinion only.

7. Not a Finding of Fact but a restatement of testimony. The substance of the testimony is accepted, however.

8. Accepted and incorporated herein. 16.-18. Accepted and incorporated herein.

19. Accepted as to lack of discrimination.

COPIES FURNISHED:

Claude E. Leiby

321 East Lake Drive Sarasota, Florida 34232

Augustus D. Aikens, Jr., Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

A. J. McMullian, III Interim Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-004186

Orders for Case No: 89-004186