STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLANDE LEBRUN and BARNABAS )

LEBRUN, as parents and natural ) guardians of MICHAEL LEBRUN, ) a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2988N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 8, 1994, and June 23, 1994, in Miami, Florida.

APPEARANCES

For Petitioners: Alan Goldfarb, Esquire

Goldfarb and Gold, P.A.

100 Southeast 2nd Street, Suite 3900 Miami, Florida 33131

For Respondent: W. Douglas Moody, Esquire

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue are the actual expenses, if any, for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities and for related travel currently required for the infant, and the reasonable expenses, if any, incurred in connection with the filing of the claim for compensation, including reasonable attorney's fees.

PRELIMINARY STATEMENT

On or about March 26, 1993, Rolande Lebrun and Barnabas Lebrun, as parents and natural guardians of Michael Lebrun (Michael), a minor, filed a claim with the Division of Workers' Compensation, Florida Department of Labor and Employment Security (hereinafter referred to as "DWC") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan"). DWC served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about March 29, 1993.

Effective May 15, 1993, by operation of Chapter 93-251, Laws of Florida, jurisdiction to hear and decide all pending and future claims for compensation under the Plan was transferred to the Division of Administrative Hearings (hereinafter referred to as "DOAH").

By letter of May 20, 1993, to petitioners' counsel, NICA acknowledged, following its review of the claim, that Michael had "suffered a birth-related neurological injury as defined in Section 766.302(2), Florida Statutes," that it was "prepared to provide medical benefits as provided by Section 766.31(a) and [was] willing to offer the full $100,000.00 as provided in Section 766.31(1)(b)," and requested counsel's "time and expense records so that we may reach agreement on your attorney's fees as per Section 766.31(1)(c)." Enclosed with the letter was a draft stipulation, evidencing NICA's acceptance of the claim for compensation, for consideration by petitioners' counsel, and ultimately for approval by the Hearing Officer pursuant to Section 766.305(6), Florida Statutes.

There being no response of record to NICA's letter of May 20, 1993, an order was entered on July 30, 1993, which provided:

Upon review of the file it appears that respondent has acknowledged the compensability of the subject claim and has offered to resolve the issues. The file does not, however, reflect any further activity. Under the circumstances, it is

ORDERED that the parties shall advise the Hearing Officer in writing on or before August 13, 1993, as to the status of this matter and the need, if any, to schedule a hearing on any pending issues.

In response to such order, petitioner's counsel requested a hearing to determine "payment of medical, hospital,

rehabilitative, training and other expenses," and NICA replied that in view of its agreement to accept the claim it was unaware of any expense that was in dispute, and requested that no hearing be scheduled until petitioners "enumerate[d] in writing each and every `payment of medical, hospital, rehabilitative training and other expense,' which necessitates resolution at a formal hearing."

Based on the parties' responses, an order was entered on September 2, 1993, which provided:

ORDERED that the parties advise the Hearing Officer in writing on or before September 30, 1993, of the need, if any, to schedule a hearing on any pending issues. Should either party request a hearing, such party shall specify in writing, with specificity, each issue or matter requiring resolution.

In response to such order, petitioners served a request for hearing on September 22, 1993, requesting that a hearing be scheduled to resolve the following issues:

1. The monthly and/or annual compensation

   for the medical, hospital, educational, rehabil- itative and other services to be provided for Michael Lebrun, who suffered a birth related neurological injury.

2. Any other benefits Michael would be entitled to under the applicable statutes.

3. The reasonable amount of attorney's fees to the undersigned.

4. The manner of payment to the parents of their benefits under the applicable statute.

NICA responded to petitioners' request for hearing by letter of October 8, 1993, which provided:

I have received your letter [sic] requesting a hearing to resolve issues on the outstanding NICA claim.

Regarding your impression of an issue on the annual costs of medical care this child will need, this does not appear to me to be an issue. We have agreed to pay all medical expenses as allowed by statute. Please tell me what medical expenses are in dispute because I am completely unaware of what requests are unsatisfied at this time.

As far as the need for a hearing to determine a reasonable attorney fee in this claim, I have requested time records and itemization of expenses from you in the past and agreed in writing that I will pay an attorney fee in this claim. You have failed to forward any demand or documentation of any expenditure or hours in this claim. How am I

to evaluate whether nor not we will be able to agree on a fee or the need for a hearing without some response from your office?

* * *

The other issue you specify as needing to be resolved is the parental award. We agreed to pay the maximum amount payable under this act.

* * *

By this correspondence, I am responding to your request for a hearing and am including a copy of a proposed stipulation and a copy of my previous

letter [of May 20, 1993] agreeing to pay this claim.

I am asking the Hearing Officer to rule this claim compensable, but I feel the need for a hearing on non-issues is a waste of . . . time. . . .

Following receipt of petitioners' request for hearing and NICA's response, a telephonic status conference was held on October 28, 1993. Ms. Lori Damiami of the Law Offices of Goldfarb & Gold, P.A., appeared on behalf of petitioners but, upon inquiry, was unable to articulate what needs Michael currently required that had not been provided or paid without first conferring with Attorney Alan Goldfarb. Ms. Damiami was then directed to consult with Mr. Goldfarb and advise NICA as to the specific needs of the infant so those matters could be resolved between the parties or, if necessary, addressed at hearing.

By letter of January 21, 1994, Mr. Goldfarb advised the Hearing Officer that:

We are again requesting a hearing to be held

in Miami at your earliest convenience in connection with the above-referred to matter. We have previously requested a hearing in connection

with this matter and you asked us to attempt to narrow the issues. We have attempted to do so and I believe that a hearing is needed in order to finalize the remaining issues.

From the tenor of counsel's letter of January 21, 1994, the Hearing Officer assumed, incorrectly as discussed infra, that petitioners had advised NICA of the specific needs of the infant and NICA had declined to provide those benefits. Accordingly, as requested, a notice of hearing was issued January 27, 1994, scheduling a hearing for March 11, 1994, to address those matters "set forth in petitioners' request for hearing dated September 22, 1993." At petitioners' request, filed March 9, 1994, the

hearing scheduled for March 11, 1994, was rescheduled for June 8, 1994, when it was heard as scheduled.

Prior to hearing, the parties, by stipulation filed March 30, 1994, and approved by final order of March 30, 1994, resolved all issues regarding the subject claim with the exception of "Respondent's (Association's) obligation to pay past medical expenses, a reasonable attorney's fee, and continuing obligation under the provisions of Section 766.31, Florida Statutes, to pay future expenses as incurred." [Final Order, March 30, 1994.] DOAH retained jurisdiction to "resolve any . . . disputes, should they arise, regarding petitioners' entitlement to payment for past medical expenses, a reasonable attorney's fee, and subsequently incurred expenses." [Final Order, March 30, 1994.]

As a consequence of the parties' stipulation and the foregoing final order, all issues that were scheduled to be addressed at the June 8, 1994 hearing had been resolved with the exception of petitioners' entitlement to payment for past or current "medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and services, for medically necessary drugs, special equipment, and facilities, and for related travel," as well as the "[r]easonable expenses incurred in connection with the filing of [the] claim .

. ., including reasonable attorney's fees." Section 766.31(1)(a) and (c), Florida Statutes. 1/

At hearing, petitioners called Paul M. Deutsch, Ph.D., Rolande Lebrun, and Lynn Dickinson as witnesses, and their exhibits 1 and 2 were received into evidence. Respondent called Lynn L. Laughlin, Zoraida Salgado, Gabriela Davis and Louise Schmitt as witnesses, and its exhibits 1-5 were received into evidence.

The last volume of the hearing transcript was filed December 29, 1994, and the parties were accorded ten days from that date to file proposed final orders. Thereafter, the parties were, at their request, accorded until February 3, 1995, to file proposed final orders. Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Respondent elected to file a proposed final order and the proposed findings of fact contained in that proposal are addressed in the appendix to this final order.

FINDINGS OF FACT

Background

1. Michael Lebrun (Michael) is the natural son of Barnabas Lebrun and Rolande Lebrun, and was born October 9, 1990, at Jackson Memorial Hospital, Dade County, Florida.

2. At birth, Michael suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes, and he was accepted by respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA) for coverage under the Florida-Birth Related Neurological Injury Compensation Plan (the Plan). Section 766.301, et seq., Florida Statutes. Consistent with Section 766.305(6), Florida Statutes, NICA's acceptance of the claim was approved by final order of March 30, 1994, and NICA was directed to pay "past medical expenses, a reasonable attorney's fee, and . . . future expenses as incurred" in accordance with Section 766.31, Florida Statutes. The order further reserved jurisdiction to resolve "any disputes, should they arise, regarding petitioners' entitlement to past medical expenses, a reasonable attorney's fee, and subsequently incurred expenses."

   
   

3. At petitioners' request, a hearing was held to address, pertinent to this order, medically necessary and reasonable expenses alleged to be currently required by the infant, and the reasonable expenses incurred in connection with the filing of the claim for compensation, including reasonable attorney's fees. Petitioners did not, however, at any time prior to hearing, present any requests for compensation to NICA which identified any specific needs of the infant which they felt should be covered by the Plan, but were currently unmet. 2/

   
   

4. Notably, the parties' stipulation, which resolved that Michael was covered under the Plan, approved by order of March 30, 1994, provided:

   
   

   8. The Claimants and the Association hereby agree as follows:

   * * *

   1. The Association will pay all benefits,

      past and future, as authorized by Section 766.31, Florida Statutes.

   2. The Association and Alan Goldfarb, Esquire, the attorney for the Claimants, agree that a reasonable sum for attorneys fees and services

   and certain expenses incurred in the representation of the Claimant in this case will be determined at a future date. In absence of an agreement for a specific amount, either party may request a hearing for determination.

   * * *

   11. The Parties agree that the issues of the actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential and custodial care and service, for medically necessary drugs,

   special equipment and facilities, and for related travel as per Florida Statute 766.31

   and for a reasonable attorney's fee and expenses, may be determined by the Hearing Officer if a dispute arises regarding the same. The association is not aware of any specific disputes regarding

   the services being provided to Michael Lebrun but acknowledges that petitioners have requested a hearing regarding the same. . . .

   * * *

   16. In order for the Association to carry out its responsibility as provided in this stipulation, the Claimants shall provide within thirty (30) days of the date of approval of this stipulation, the following:

   1. A complete list (with copies, invoices, addresses, etc.) of all known past expenses for which the Claimants seek reimbursement in accordance with the terms and provisions of this stipulation document for medical and related expenses previously incurred; and

   2. A fully executed authorization of release of any and all medical records, insurance program records, and such other authorization as may, from time to time, reasonably be required by the Associa- tion to complete its duties hereunder; and

   3. Such other reasonable information as may be required by the Association, which relates to the provision of Michael [sic] [medical] or habilitative care or the payment of Michael's bills.

5. Petitioners' failure to file a claim with NICA for benefits they were of the opinion that Michael currently required, but had not received, or supply NICA with the requested information to evaluate any request for benefits, was contrary to their obligation, as evidenced by the forgoing stipulation. Such failing was not, however, raised by NICA prior to hearing, nor did it object to such failing during the course of hearing. Accordingly, while, if timely raised, petitioners' failure to first provide NICA an opportunity to address the specifics of a claim for benefits prior to hearing could have been appropriately addressed, such failure is not a bar to the resolution of the issues presented. 3/

   Michael's past and current history

   
   

6. Following six months of life, Michael was referred to the Department of Health and Rehabilitative Services (DHRS), Children's Medical Services, Early Intervention program. Through his Early Intervention coordinator, Michael was initially provided services, at public expense, through what is known as the "Birth through Two" ("B-2") services program. That program is a public service program for handicapped children through 36 months of age, or until their transition to the Dade County Public Schools Special Education Pre-K Program, and is jointly funded by DHRS and the Dade County Public Schools.

7. As of the date of hearing, Michael had been receiving, and was scheduled to continue to receive until his transition into the Pre-K Program, physical therapy three times a week at forty-five minutes a session and occupational therapy four times a week at forty-five minutes a session, including oral stimulation, through United Cerebral Palsy. Such other services or items of special equipment that Michael needed were also ordered or provided, at public expense, through the auspice of his Early Intervention coordinator.

   
   

8. As of July 5, 1994, some two weeks following the hearing in this case, Michael was scheduled to transition from the B-2 Program into the Pre-Kindergarten Exceptional Education Program (Pre-K program), where he would receive a different level of rehabilitative services. According to the proof, once he transitions into the Pre-K program, Michael will receive sixty minutes per week of physical therapy and thirty to forty-five minutes of occupational therapy, during the course of the school day. Such therapies are not quantified by frequency or duration of a therapy session predicated on the well founded belief that a child's responsiveness to therapy will vary from day to day and, accordingly, the frequency of delivery is left to the discretion of the individual therapist.

   
   

9. As provided by the School Board, physical therapy primarily deals with the functional mobility, positioning and musculoskeletal "status" of the lower extremity of the student, and occupational therapy primarily addresses the functioning of the upper extremities, classroom positioning and improvement of visual and perceptual motor skills to function in an educational program. Although available, the School Board does not propose to offer speech therapy to Michael since it has concluded, based upon evaluations and observations, that his speech development is commensurate with his present level of cognitive functioning and that no developmental deficiency exists.

   
   

10. As noted, the physical therapy and occupational therapy provided by the School Board during the school year is predicated on what it perceives is necessary for the student to profit from the educational program. Under the circumstances, the services provided are not necessarily an objective evaluation of the medically necessary and reasonable habilitative services the infant may need for treatment; 4/ however, in some cases they may be. Whether the services to be provided the infant in this case will meet such standard can not, based on the record in this case, be resolved; however, if not, such services should be available, subject to available appropriations, through the Department of Health and Rehabilitative Services. Section 409.905, Florida Statutes.

11. In addition to his apparent need for physical and occupational therapy, Michael also exhibits various self-abusive behaviors which require therapeutic correction. Such treatment was requested by Michael's Early Intervention coordinator, through Developmental Services, on February 18, 1994. As of the date of hearing, it was not shown whether Michael had or had not begun to receive such services.

    
    

    The subject claim

    
    

12. At hearing, petitioners offered no proof of any expenses previously incurred for which they sought reimbursement, 5/ and their claim, relative to the current needs of Michael, was limited to certain equipment, therapy and attendant care which Paul M. Deutsch, Ph.D. ("Mr. Deutsch"), perceived was required for Michael. 6/

    
    

13. As to the items of equipment recommended by Mr. Deutsch, many were age specific and no longer required or had otherwise been provided through a public assistance program. Currently, according to Mr. Deutsch, Michael is in need of the following equipment: (1) TLC bath seat; (2) prone stander; (3) exercise mat; (4) hand-held shower; (5) wheelchair backpack; and,

    (6) Rifton pottychair.

    
    

14. At the time of final hearing, the prone stander had been ordered through Children's Medical Services, but a TLC bath seat and hand-held shower had not. There was, however, no showing that the Lebruns desired such items or that the TLC bath seat and held-held shower were needed for Michael's care. Indeed, Michael can sit in the bathtub where he is regularly bathed by his parents without a TLC bath seat or hand-held shower. Should the Lebruns decide in the future that such items would be beneficial to them in the care of Michael, they are certainly able to ask NICA for such items; however, currently, they have demonstrated no desire or need for them. As to the wheelchair backpack, the proof fails to demonstrate that Michael needs such item because he does not suffer from any medical condition that requires the transport of special medical

    equipment. Likewise, Michael does not currently require a Rifton

    pottychair since he is not currently being "potty trained" nor is there any expressed expectation to begin such training in the known future. Michael also does not currently require an exercise mat since he is not receiving any home therapy.

    
    

15. As for rehabilitative services, Mr. Deutsch recommends that in addition to the services that Michael is to receive through the Dade County Public School system that he receive two

    physical therapy sessions, two occupational therapy sessions, and two speech therapy sessions each week.

    
    

16. Given that Mr. Deutsch was not specifically aware of the therapies Michael was receiving and was to soon receive, that he had never participated or observed any therapy sessions with Michael, and offered no specific reasons as to why these additional therapies were necessary to treat Michael's condition, Mr. Deutsch's opinion is rejected. Indeed, Mr. Deutsch's recommendations appear to be little more than a generic model, without specific reference to the needs of Michael and the benefits that might reasonably be expected from additional therapies, if any. Notably, Mr. Deutsch's life care plan recommends an annual evaluation by health care specialists to address Michael's specific needs for physical, occupational and speech therapy. That recommendation is a tacit recognition of the fact that each disabled child does not require the same services, and recognizes that the need for services is appropriately left to health care professionals involved with Michael's care. Significantly, the record is devoid of any proof, apart from public services, that petitioners or their counsel ever acted on Mr. Deutsch's recommendation, made May 27, 1993, that Michael receive an annual evaluation by health care specialists to address his need for such services.

17. While the nature and frequency of services requested were not shown to be medically necessary or reasonable at the time of hearing, the record does demonstrate that Michael requires rehabilitative services and special equipment, which, although ordered through public service programs, may not have been provided or may not be adequate. Given the circumstances, it would be appropriate for NICA to continue its coordination with public service agencies, as discussed infra, to assure that Michael receives the services and special equipment he requires in a timely manner. 7/ Moreoever, since the proof fails to demonstrate whether a medical assessment has been made, it would be appropriate and in the best interests of the child for NICA to coordinate with the public service agencies to assure a comprehensive medical assessment is made of Michael's current need for speech therapy and to determine whether additional physical and occupational therapy may be warranted. Should there currently exist no obligation or ability, because of lack of funding or otherwise, for the public service agencies to provide a medical evaluation, therapy as needed, or special equipment, or should the agencies fail to timely provide a medical evaluation, therapy or special equipment, though required by law to do so, it would be appropriate for NICA, with the parents' consent, to provide those services or equipment until the appropriate pulbic service agency accepts responsibility for the provision of those services and equipment.

18. Finally, Mr. Deutsch has recommended that "attendant care" be provided to the Lebrun family at the rate of two to four hours a day to provide consistency in the care of Michael while allowing the parents a respite. Notably, the Lebruns, who speak regularly with NICA, have never made such a request, and there was no showing that such services are necessary at this time. 8/

    
    

19. Attendant care is generally provided in the home to assist with an individual's daily living skills, such as bathing, moving the individual in and out of a wheelchair or repositioning. Attendant care is not necessary at this time as Michael is still quite small and he is mobile. Indeed, there was no proof at hearing that the Lebruns were incapable, by virtue of any circumstance, to care for Michael, or that he required inordinate care.

    NICA's activities

    
    

20. NICA, consistent with its obligations under law, has maintained communication with Michael's Early Intervention coordinator at the Department of Health and Rehabilitative Services, Children's Medical Services, as well as Michael's staffing specialist with the Dade County Public Schools, to monitor Medicaid services to Michael and, if necessary, provide any services those agencies are unable to provide. NICA, through its Executive Director, Lynn Dickinson, has met personally with the Lebruns on numerous occasions, and has routinely spoken with them by telephone, regarding Michael's care and any perceived needs they may have had for his care. At no time, during the course of any of those conversations, did the Lebruns ever request any attendant care or any other service or equipment recommended by Mr. Deutsch. 9/

    Attorney's fees and costs

    
    

21. Although duly noticed at petitioners' request, as an issue to be heard, petitioners offered no proof, as required by Section 766.31(1)(c), Florida Statutes, to support their claim for an award of reasonable attorney's fees. As for costs, the only proof offered concerned an agreed fee arrangement with Mr. Deutsch. According to Mr. Deutsch, he agreed to a cap of $3,000 just to cover expenses. What those expenses were, are or will be, was not, however, explained of record, and it cannot be concluded, based on the proof, that such $3,000 cap is reasonable or recoverable.

    
    

    CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes (1993).

    
    

23. The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

    
    

24. The injured "infant, his personal representative, parents, dependents, and next of kin," may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1) and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (NICA), which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition

and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

25 While the Plan "requires that claims for compensation must be filed, it also contemplates payment of claims without resort to a formal administrative hearing process." Humana of Florida, Inc. v. McKaughan, 20 Fla. L. Weekly D565 (Fla. 2d DCA 1995). Notably, Section 766.305(6) provides that "[a]ny claim which the association determines to be compensable may be accepted for compensation, provided that the acceptance is approved by the hearing officer to whom the claim for compensation is assigned." Moreover, Section 766.31(2) provides, inter alia, that an award of compensation "shall require that future expenses be paid as incurred."

1. Here, NICA determined that petitioners' claim should be accepted for compensation and, consistent with Section 766.305(6), that acceptance was approved by the Hearing Officer though a final order rendered March 30,1994.

   
   

2. The final order, consistent with the parties' stipulation and the provisions of Section 766.31, provided for an award to the parents in the sum of $100,000, an award of reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees, and the payment of expenses previously incurred and future expenses as incurred. That order contemplated, consistent with the Legislative intent evidenced by the Plan, that it would be self-executing, and that benefits would be paid without the necessity of any further administrative proceedings; however, it did reserve jurisdiction "to resolve any future disputes, should they arise, regarding petitioners' entitlement to payment for past medical expenses, a reasonable attorney's fee, and subsequently incurred expenses." See, e.g., Section 766.31(2), Florida Statutes, and Humana of Florida, Inc. v. McKaughan, 20 Fla. L. Weekly D565 (Fla. 2d DCA 1995).

   
   

3. Pertinent to this case, Section 766.31, Florida Statutes, provides:

   
   

   1. Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the hearing officer shall make 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, 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.

         2. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity.

         3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the

            extent such exclusion may be prohibited by federal law.

         4. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program.

         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 the injured person.

         * * *

   2. The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.

      
      

4. Here, petitioners contend that Michael currently needs certain services and equipment which are not being provided, and that he is entitled to such services under the provisions of Section 766.31(1)(a), Florida Statutes. As the claimants, petitioners bear the burden to demonstrate their entitlement to an award of compensation for those benefits. Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Conversely, NICA bears the burden to demonstrate, if applicable, that any requested benefit is available through a collateral source and, therefore, pursuant to Section 766.31(1)(a)1-4, excluded from coverage. See, Balino v. Department of Health and Rehabilitative Services, supra, at page 350 ("The general rule is . . . the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal."), and Peninsular Life Inc. 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).

   
   

5. Pertinent to the resolution of petitioners' claim is whether the items and services sought are "medically necessary and reasonable." The phrase "medically necessary and reasonable" is not, however, defined by the plan.

   
   

6. Black's Law Dictionary (5th Ed. 1979), in defining "necessary," states:

   
   

   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 reason- ably 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.

   
   

7. When, as here, the legislature has not defined the phrase used in a statue, it should ordinarily be given its usual and natural meaning; however, where the phrase contains key words like "necessary" and "reasonable," the phrase is plainly susceptible of more than one meaning. Under such circumstances, consideration must be accorded not only the literal or usual meaning of the words, but also to their meaning and effect in the context of the objectives and purposes of the statute's enactment. See, Florida State Racing Commission v. McLaughin,

   102 So.2d 574 (Fla. 1958). Indeed, "[i]t is a fundamental rule

   of statutory construction that legislative intent [or purpose] is the polestar by which the court must be guided [in construing enactments of the legislature]." State v. Webb, 398 So.2d 820, 834 (Fla. 1981).

   
   

8. In construing the term "medically necessary and reasonable" under the Plan, consideration must be given to an interpretation that reconciles the legislative goal which limits the amount of compensation or cost, and the purpose of the act which is to provide for the payment of "medically necessary and reasonable medical . . . [or] habilitative and training" expenses without regard to fault.

   
   

9. In an analogous situation under New Jersey's No Fault Act, the court in Thermographic Diagnostics, Inc. v. Allstate Insurance Co., 593 A.2d 768 (NJ 1991), construed the term "reasonable and necessary medical expenses" in context with the objectives that inspired passage of the No Fault Act. There, considering a claim for expenses incurred for thermographic examinations, a relatively new and controversial diagnostic procedure, the court rejected, as overly restrictive and generally incompatible with the primary objectives of the Act, that "reasonable and necessary medical expenses," were those expenses which enjoyed the general acceptance by a majority of the medical community. Rather, the court concluded:

   
   

   . . . we hold that . . . a necessary medical expense under the Act is one incurred for a treatment, procedure or service ordered by a qualified physician based on the physician's objectively reasonable belief that it will further the patient's diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value must be verified by credible and reliable evidence. That standard, in our view, is consistent with the reparation objectives of the Act in that it would allow reimbursement for innovative medical procedures warranted by the

   circumstances that have demonstrable medical value

   but have not yet attained general acceptance by a majority of the relevant medical community. It will also accommodate reimbursement for promising experimental medical techniques constituting the only realistic means for treatment of certain patients, which defendants acknowledge would not qualify under a general-acceptance standard. In requiring that the physician's belief that the procedure will advance diagnosis or treatment be objectively reasonable, that its medical value

   be verified, and that the procedure be warranted by the circumstances, the standard we adopt also complements the cost-containment objectives of the No Fault Act.

   
   

   Id., at page 780. Accord, Sabatier v. State Farm Mutual Automobile Insurance Co., 592 A.2d 1098 (Md. 1991). See also, Palma v. State Farm Fire and Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986).

   
   

10. Considering the provisions and purpose of the Plan, its similarities to the No Fault Acts, and the foregoing authorities, it is concluded that a "medically necessary and reasonable" expense under the Plan is not limited to those expenses incurred for services which enjoy the general acceptance by a majority of

    the medical community. Rather, as stated in Thermographic Diagnostic, Inc. v. Allstate Insurance Co., supra, at page 780, a "medically necessary and reasonable" expense is:

    
    

    . . . one incurred for a treatment, procedure or service ordered by a qualified physician based on the physician's objectively reasonable belief that it will further the patient's diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value must be verified by credible and reliable evidence . . . .

    
    

    As observed by that court, and equally applicable to the Plan, such standard:

    
    

    . . . is consistent with the reparation objectives of the Act in that it would allow reimbursement for innovative medical procedures warranted by

    the circumstances that have demonstrable medical value but have not yet attained general acceptance by a majority of the relevant medical community.

    It will also accommodate reimbursement for promising experimental medical techniques constituting the only realistic means for treatment of certain patients, which defendants acknowledge would not qualify under a general- acceptance standard. In requiring that the physician's belief that the procedure will advance diagnosis or treatment be objectively reasonable, that its medical value be verified, and that the procedure is warranted by the circumstances, the standard we adopt also complements the cost-containment objectives

    of the Act.

    
    

11. Applying the foregoing standard to the facts of this case compels the conclusion that petitioners have failed to demonstrate that the therapies proposed by Mr. Deutsch are "medically necessary and reasonable" services because there is no proof of record from any physician, physical therapist or other health care provider who has examined Michael, treated Michael, or administered therapy to Michael, that Michael needed or could derive any benefit from such additional therapies. 10/

    Moreover, as to the special equipment and other services requested, the proof failed to demonstrate that it was, at this time, "medically necessary and reasonable" or the proof demonstrated that it was exempted from coverage under the Plan pursuant to Section 766.31(1)(a), Florida Stutues. Under the

    circumstances, those items of equipment or services are not recoverable under the Plan.

    
    

12. As for petitioners' request for attendant care, the proof, as heretofore noted, failed to demonstrate that Michael required inordinate care or that the Lebruns were incapable, by virtue of any circumstance, to care for Michael. Under such circumstances, petitioners have failed to demonstrate that their request for attendant care is compensable under the Plan. Notably, ordinary supervision and expenses a parent would expect in childrearing, such as food, clothing, and shelter, as opposed to extraordinary expenses associated with the care of a mentally and physically impaired child, are the responsibility of the parent. See, e.g., Ash v. Coconut Grove Bank, 443 So.2d 437 (Fla. 3d DCA 1984).

    
    

13. Finally, as for petitioners' claim for reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees, it is observed that Section 766.31(1)(c), Florida Statutes, requires the Hearing Officer to consider six factors in determining an award for attorney's fees. Petitioners offered no proof regarding any of those factors and, consequently, failed to sustain their burden to establish the reasonableness of any attorney fee award.

    
    

14. As for petitioners' claim for costs, the only proof offered was Mr. Deutsch's testimony that he had agreed to a cap of $3,000 just to cover expenses. Mr. Deutsch failed, however, to articulate what those expenses were, are or will be and, consequently, the reasonableness of those expenses has not been established of record.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that:

1. NICA, with the consent of Michael's parents, coordinate with the public service agencies to assure a prompt medical assessment of Michael's current need for speech therapy and to determine whether additional physical and occupational therapy may be warranted. Should such agencies be unable or unwilling to provide Michael with such assessment or needed therapy services in a timely manner, NICA should arange for and fund such assessment and provide compensation for any needed therapy until such time as the agency responsible, if any, agrees to fulfill or is compelled to fulfill, its obligations, consistent with existent law.

2. NICA promptly investigate the requests for services and special equipment pending before third party providers, as heretofore noted, and where the provider is unwilling or unable to provide the special equipment or service in a timely manner,

   to provide such special equipment or service to Michael until such time as the provider is prepared or compelled to abide its obligations consistent with existent law.

   
   

3. In all other respects petitioners' requests for additional services and special equipment, as well as their request for reasonable expenses incurred in connection with the filing of the claim for compensation, including reasonable attorney's fees, is denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of April 1995.

WILLIAM J. KENDRICK

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 3rd day of April 1995.

ENDNOTES

1/ Under ordinary circumstances, a detailed litany of prehearing events would not merit attention, where, as here, the primary issue is, or should be, whether certain items claimed by petitioners are medically necessary and reasonable medical or habilitative and training expenses, as required by Section 766.31(1)(a), Florida Statutes, and are therefore recoverable under the Plan. The manner in which this claim was presented is not, however, typical and certain observations are warranted such that future claims do not suffer the tortuous route or unsatisfactory conclusion suffered by this claim.

When pursuing a claim, a claimant should be aware, as observed in the findings and conclusions which follow, that the Plan is funded through a combination of appropriations of general revenue from the Florida Legislature, as well as physician and hospital assessments mandated by law, and such fund is considered a tax, which is imbued with a public trust. See e.g., Coy v.

Florida Birth-Related Neurological Injury Compensation Plan, 595 So.2d 943 (Fla. 1992). NICA, as the administrator of the Plan, is, as a consequence of that public trust and the provisions of Section 766.31(1)(a), Florida Statutes, constrained to pay only

"[a]ctual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and

custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel" subject to the exclusions specified by law.

Where, as here, coverage has been accepted, any claim for benefits that is perceived to be "medically necessary and reasonable" should first be presented to NICA, as one would traditionally present a claim to an insurance carrier, for review. See, e.g., Humana of Florida, Inc. v. McKaughan, 20 Fla.

L. Weekly D565 (Fla. 2d DCA 1995) ["T]he Plan . . . has [been] compared to a form of insurance supported by a tax "],

["The Plan . . . contemplates payment of claims without resort to a formal administrative hearing process."] Should NICA decline the claim, then resolution of the claim through the formal hearing process would be appropriate. Failure to follow such a simple and logical process can only lead, as the instant case aptly illustrates, to confusion as to the benefits that are sought for the infant, unfruitful debate as to what benefits are "medically necessary and reasonable," and, most tragically, inordinate delay in addressing the needs of the infant. In sum, candor on behalf of the infant concerning his needs is as essential to the proper operation of the Plan as NICA's fulfillment of its legal responsibilities.

2/ Notably, as disclosed at hearing, at no time prior to hearing, did petitioners identify any specific needs of Michael that were not being provided, and it was only at the first day of hearing on June 8, 1994, that NICA was provided a copy of Paul Deutsch's "Life Care Plan," which formed the sole basis for their request at hearing. [Hearing transcript, June 8, 1994, at pages

19 and 20; Hearing transcript, June 23, 1994, at pages 61 and 62.] Such failure was contrary to the order of September 2, 1993, the directives made at the telephonic conference call of October 28, 1993, and the intent of the Plan that claims be paid without resort to a formal administrative hearing process.

3/ It is observed, however, that petitioners' failure has resulted in, or contributed significantly to, a record that is significantly lacking in the quality of proof one would normally expect to demonstrate that the services requested for Michael were "medically necessary and reasonably" and, likewise, has significantly delayed the consideration of any benefits Michael might require.

4/ This conclusion is aptly addressed through the testimony of Louise Schmitt, the coordinator for Physical and Occupational Therapy Services for the Dade County Public Schools wherein she stated:

. . . children are in school to get an education, not to be rehabilitated. Their sole purpose is not to get PT or OT. They're there to benefit from a educational program and PT and OT

are related services and not programs. And then we look at the immediacies the needs, how critical it is for the child to have therapy, to access the information that the teacher wants to provide to the students. [Tr. Vol. II, pages 128 and 129)

5/ During the course of hearing on June 8, 1994, counsel for petitioners suggested that Michael's prescription for phenobarbital had been denied renewal because his Medicaid benefits had been cut off and, presumably, he no longer enjoyed benefits; however, such was never shown by competent proof. At the June 23, 1994 hearing, petitioner, Barnabas Lebrun, testified that he had not received Medicaid benefits for a month and that, while he had received no written notification from Medicaid, he had been informed by someone at Publix who filled his prescriptions that they had been terminated. The credible proof fails, however, to demonstrate that Michael's Medicaid benefits have been terminated. Rather, it demonstrates that Michael continues to enjoy Medicaid coverage.

Mr. Lebrun also testified that Michael's Social Security

Disability benefits had also terminated and that he had received a letter regarding that termination which he turned over to his attorney to handle. The letter was produced at hearing [Respondent's Exhibit 1] and it was not a letter of termination but a notification that the Social Security Administration had overpaid Michael in the amount of $1,217.36 and that it proposed to recoup such sum by withholding $44.60 each month from Michael's SSI payments. Mr. Lebrun was, however, accorded the opportunity to dispute the decision, request a waiver, or appeal. Whether Mr. Lebrun's attorney had taken any action is not of record.

6/ Michael was referred to Mr. Deutsch by petitioners' counsel for the purpose of preparing a Life Care Plan. Mr. Deutsch observed Michael at his attorney's office on May 3, 1993, and observed him once again on June 8, 1994, just before he testified in this case. Mr. Deutsch has never visited the Lebrun home and has never administered or observed the administration of any care or rehabilitative services to Michael.

On May 27, 1993, Mr. Deutsch delivered a written narrative report of his evaluation and his Life Care Plan to petitioner's counsel. At no time, prior to hearing, did petitioners' counsel share such documents with NICA or make any specific demand of NICA for any of the equipment, therapy or attendant care recommended by Mr. Deutsch. Assuming such services were needed, and that Mr. Deutsch's report supported such need, such failure was obviously not in the best interests of Michael.

7/ Mr. Deutsch also recommended that Michael's self-abusive behaviors be evaluated and addressed through behavioral

protocols. As heretofore noted, such therapy has already been requested through Developmental Services.

8/ The Lebruns have requested of NICA in the telephone conversations with NICA's Executive Director, Lynn Dickinson, whether NICA would compensate Mrs. Lebrun for her care of Michael. To date, NICA has declined, and petitioners have made no such request in this case.

9/ NICA, by necessity, deals with a clientele subject to diverse economic circumstances. Some of NICA's clients have no private insurance and do not qualify for public assistance. In such cases, NICA acts as the primary service provider. By contrast, some of NICA's clients, like the Lebruns, have no insurance and qualify for public assistance in the form of Medicaid and related social security benefits. Medicaid, as relates to children, provides a variety of educational and rehabilitative services.

Moreover, the public school systems of this state also provide various services to handicapped children, all of which must be monitored by the NICA staff. NICA also deals with a clientele whose needs are diverse, with no single client requiring the same degree of rehabilitation or educational resources and, consequently, the same degree of assistance from the association.

10/ The most significant defect in Mr. Deutsch's recommendations is the foundation upon which they are based. Mr. Deutsch has never witnessed the manner in which Michael responds to therapy, he was not aware of the specific goals established by Michael's therapists or the time frame in which those goals were to be accomplished, he failed to enumerate any goal Michael should have reached but had not, and he could not articulate what, if anything, the additional therapies would remedy. Given the circumstances, Mr. Deutsch's opinions are not persuasive.

LeFeore v. Bear, 113 So.2d 390, 393 (Fla. 1959) ("It is a general rule that an opinion is worth no more than the reasons on which it is based.").

APPENDIX

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 6.

2 and 3. Addressed in paragraph 20, otherwise unnecessary detail.

4 and 5. Addressed in paragraph 8.

6 and 7. Addressed in endnote 5.

8 and 9. Addressed in paragraph 20 and endnote 9.

10-16. Addressed in paragraphs 12 and 16, and endnotes 6, 7

and 10.

17 and 18. Addressed in paragraph 13. 19-21. Addressed in paragraph 14.

22. Addressed in paragraph 7.

23-30. Addressed in paragraphs 8-10, otherwise unnecessary detail.

31-33. Addressed in paragraphs 15 and 16, otherwise unnecessary detail.

34-37. Addressed in paragraphs 8-10, 15 and 16, otherwise unnecessary detail.

38. Addressed in paragraph 11.

39-43. Addressed in paragraphs 18 and 19, otherwise unnecessary detail.

44. Addressed in paragraph 20 and endnote 8.

COPIES FURNISHED:

Alan Goldfarb, Esquire Goldfarb and Gold, P.A. Suite 3900

100 Southeast 2nd Street Miami, Florida 33131

W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM

300 East Park Avenue Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

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 one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), 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: 93-002988N

Orders for Case No: 93-002988N