STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN P. CARSWELL, )

)

Petitioner, )

)

vs. ) Case No. 99-0627

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 22, 1999, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Lamar Winegeart III, Esquire

219 Newman Street, 4th Floor Jacksonville, Florida 32202

For Respondent: Cindy Horne, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether the Department properly excluded coverage for care provided to Petitioner’s child.

PRELIMINARY STATEMENT

Petitioner, Susan P. Carswell, filed a claim for payment of health care services performed by licensed practical nurses which had been supplied to her daughter. Respondent, Department of Management Services, Division of State Group Insurance (Division) denied Petitioner’s claim based on the custodial exclusion of the State Group Health Plan that the care could be provided at a lesser cost. Petitioner disputed the Division's denial and timely filed a request for an administrative hearing. The matter was then referred to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and called 2 witnesses to testify. Petitioner also offered Exhibit Nos. 1-3 into evidence, as well as the deposition testimony of Dr. Gary Soud, M.D. Respondent presented the testimony of 2 witnesses and offered Exhibit Nos. 1-3 into evidence. Both parties submitted Joint Exhibit No. 1.

A Transcript of the final hearing was filed on August 4, 1999.

After the hearing, Respondent filed its Proposed Recommended Order on September 1, 1999. Petitioner did not submit a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Susan Carswell, was employed by the State of Florida, Department of Labor and Employment Statistics, from

   June 1994 until December 1998. She enrolled herself and her children in the State Group Health Insurance Plan (State Plan).

2. The State Plan, Section XXVIII, paragraph A, provides as follows:

   18. 'Condition' shall mean any disease, illness, injury, accident, bodily dysfunction, pregnancy, drug addiction, alcoholism, or mental or nervous disorder.

   
   

   * * *

   
   

   21. 'Covered Services and Supplies' shall mean those health care services, treatments, therapies, devices, procedures, techniques, equipment, supplies, products, remedies, for which expenses are covered under the Benefit Document. (emphasis supplied)

   
   

   * * *

   
   

   23. 'Custodial Care' means care which does not require Skilled Nursing Care or rehabilitation services and is designed solely to assist the Participant with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medicine. (emphasis supplied)

   
   

   * * *

   
   

   40. 'Illness' means physical sickness or disease, pregnancy, bodily injury, or congenital anomaly.

   
   

   * * *

   
   

   49. 'Medically Necessary' means the service received required to identify or treat the illness, injury, or mental or nervous disorder which a physician has diagnosed or reasonably suspects. The service must (1) be consistent with the symptom [sic], diagnosis and treatment of the patient’s condition, (2) be in accordance with standards of good medical practice, (3) be required for reasons

   other than convenience of the patient or his/her physician, (4) be approved by the appropriate medical body or board for the illness or injury in question, and (5) be the most appropriate, efficient and economical medical supply, service, or level of care which can be safely provided.

   
   

   * * *

   
   

   56. 'Outpatient' means a patient who is receiving medically necessary care or treatment ordered by a physician and who is not an inpatient.

   
   

   * * *

   
   

   80. 'Skilled Nursing Care' means care which is furnished by, or under the direct supervision of, licensed Registered Nurses (under the general direction of the physician) to achieve the medically desired result and to ensure the Participant’s safety.

   
   

3. Paragraph C of the State Plan provides for covered medical and surgical services and supplies as follows:

   1. Seventy percent(70) of the Allowance for Medically Necessary Inpatient/Outpatient services and supplies provided to a Participant by a Non-Network Provider for the treatment of the Participant as a result of a covered accident, illness. (emphasis

supplied)

* * *

1. Ninety percent (90) of the Allowed Amount for Medically Necessary Inpatient/Outpatient services and supplies provided to a Participant by a Network Provider for the treatment of the Participant as a result of a covered accident, illness. (emphasis

   supplied)

   
   

2. Paragraph D of the State Plan provides for other covered services as follows:

   The Plan shall pay eighty percent (80) of the Allowed Amount or Allowance, whichever is applicable, for the following Medically Necessary Services when ordered by a physician for the treatment of the Participant as a result of a covered accident, illness . . . .

   
   

   1. Nursing care by a Registered Nurse or Licensed Practical Nurse.

      
      

3. Paragraph G of the State Plan provides for exclusions to covered services and supplies as follows:

   The following are not Covered Services and Supplies under the Plan.

   
   

   4. Any services and supplies which are not medically necessary.

   
   

   * * *

   
   

   14. Any services in connection with Custodial Care or preventive care; immunizations or except those in accordance with Child Health Supervision Services or when necessary as a result of an accident.

   
   

4. The term "treatment" is not defined in the State Plan.

   
   

5. Veronica Carswell is the daughter of Petitioner. She was born on May 5, 1983. Veronica was born healthy, but due to problems resulting from an illness that hospitalized her when she was a week old, she is severely disabled. Her current state is due either to her illness or an accident. She has cerebral palsy, seizure disorder, and vision problems. She is a spastic quadriplegic, severely brain damaged and profoundly mentally retarded. Her body is severely dysfunctional.

6. She has a tracheotomy tube for breathing and a gastrostomy tube for feeding. Veronica is totally dependant on other people for her care.

7. From 1987 to 1998, Veronica resided in a specialty care residential hospital facility in New York. In 1998, Petitioner moved her daughter to Florida so that she could reside at home.

8. In preparation for the move, Petitioner advertised for and hired licensed practical nurses (LPNs) to provide her daughter with the care she needed on a 24-hour basis. Petitioner hired LPN’s because she had discovered it was considerably cheaper to hire an LPN than pay for the services of a lesser qualified home health care aid through a licensed home health care agency.

9. The LPNs provided care to Veronica according to a Care Plan devised by Kathleen Hamilton, LPN, and approved by Dr. Gary Soud, Veronica’s physician. The Care Plan provides for medically necessary treatment or management of Veronica’s current condition and bodily dysfunction. The care required in the plan is recognized as appropriate care and treatment by experts in the field and is not being given for purposes of convenience.

10. Nurse Hamilton is also one of the LPNs who care for Veronica and has provided health care services to Veronica for one year. Other LPNs provide services to Veronica similar to those provided by Nurse Hamilton.

11. The services provided by the LPNs hired by Petitioner include repositioning of Veronica periodically throughout the day, feeding through the gastric tube, checking residual fluid in Veronica’s stomach with a syringe, administering medication through the gastric tube, misting to keep secretions moist, suctioning of the tracheotomy tube, changing the tracheotomy tube ties, replacing the tracheotomy tube every 3 weeks, assessing Veronica’s cardiopulmonary status at least every eight hours and continuously throughout her care, and monitoring Veronica’s oxygen saturation every four hours or as needed by her condition at the time. The attention Veronica requires in order to maintain her breathing is fairly constant, to the point that when Nurse Hamilton testified, she had to sit or stand beside Veronica to administer care, primarily suctioning, to her. Although seizures have not been a problem, Veronica still requires monitoring by a nurse for small seizures, which while not deadly, could adversely affect Veronica’s condition. Veronica’s condition is fragile and without constant care she can quickly deteriorate.

12. Arguably a lay person with proper training could perform the activities involving the gastric tube and repositioning. However, the evidence did not show that Petitioner is adequately trained or able to perform the tasks required for proper use of the gastric tube or repositioning. Moreover, the evidence did not show that such training was

    available. Likewise, the evidence did not show that a trained lay person was available to perform the care required in relation to the gastric tube or repositioning or that such a person would be more efficient or economical to hire. In fact, the evidence showed that a trained nurse's aide would be more expensive than hiring an LPN to perform the same tasks. Therefore, it would seem appropriate that an LPN perform these services. The same economic analysis applies to all aspects of Veronica’s Care Plan.

13. Additionally the evidence was clear that the care required which involves the gastric tube is not simply care or treatment given for the sole purpose of assisting Veronica with her activities of daily living. Veronica’s condition necessitates the use of special expertise to feed her because she does not feed normally. In order to maintain her status to prevent her deterioration and even death and to prevent infection, which are recognized medical goals, she must receive additional care such as checking her stomach fluids, and cleaning and maintenance of the gastric tube. The amount she is fed must be carefully monitored. The actual feeding of Veronica is a minimum part of the care which is required because she has a gastric tube. The greater activities are the care functions performed for the purpose of maintaining her current status and preventing infection. Since the care and treatment Veronica receives involving the gastric tube are not designed for the sole

    purpose of assisting Veronica to eat, they do not fall within the exclusion for custodial activities.

14. Similarly, Veronica’s care concerning repositioning is not for the sole purpose of assisting Veronica in her activities of daily living. Repositioning maintains Veronica’s circulation and must be done in order to maintain her current health status and current level of atrophy. Repositioning also prevents the formation of pressure sores. Therefore, because repositioning has multiple medical purposes such care does not fall under the custodial care exclusion.

15. Veronica cannot breathe without a tracheotomy tube. All of the care given to Veronica which involve the tracheotomy tube are medically necessary to maintain her current medical state and to maintain an appropriate level of oxygen in Veronica’s blood and tissues. The same is true of the John Bunn mist administered to Veronica to keep her secretions moist so that she can cough them up or have them suctioned out of her air passageway. Blockage of the air passageways is a real danger with Veronica. The tube coming out is a danger to Veronica. Without these treatments or procedures Veronica’s oxygen level would drop and she would deteriorate. As indicated earlier, the tracheotomy care is constant. Because her breathing is so impaired, Veronica needs to be monitored constantly in addition to the cardiopulmonary assessment done every eight hours and oxygen saturation check done two times per shift. Such

    monitoring is a nursing assessment requiring special training which is best done by a nurse. Nothing involving the tracheotomy is done for the sole purpose of aiding with Veronica’s activities of daily living. Therefore the custodial exclusion does not apply.

16. Except for the replacement of the tracheotomy tube every month, none of the care or treatment rendered to Veronica is required to be performed by a registered nurse (RN) or under the supervision of a RN. However, some of the care and treatment requires nursing expertise of at least the training of an LPN. However, all of the care can be part of a nurse's function and, at least in this case, is better supplied by a nurse, given Veronica’s fragile condition, level of impairment and the fact that the care is provided most efficiently and economically by an LPN. Therefore, Petitioner is entitled to payment of her claim under the State Plan.

    CONCLUSIONS OF LAW

    
    

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

18. Petitioner has the burden to establish by a preponderance of the evidence that she is entitled to payment of her claim under the State Health Plan. The first step in this process is to determine whether any exclusions to coverage apply.

19. In this case, the only exclusion which could apply is the exclusion for custodial services. Clearly, the services required in Veronica’s care plan assist with her daily living and do not require the training of an RN. However, the custodial services exclusion does not apply since none of the care or treatment given to Veronica is for the sole purpose of assisting Veronica in her activities of daily living. The evidence showed that all of the care and treatment given to Veronica had other medical purposes. The evidence also showed that the services fell within nursing services and some required the training of an LPN.

20. The State Plan provides coverage for outpatient services for the treatment of the insured as a result of a covered illness. See State of Florida Employees Group Health Self Insurance Plan Booklet and Benefits Document, paragraph C. The State Plan also provides coverage for medically necessary nursing care (not skilled nursing care) performed by a RN or an LPN when ordered by a physician. See State of Florida Employees Group Health Self Insurance Plan Booklet and Benefits Document, paragraph D. There is no dispute that Veronica’s condition is a covered illness under the State Plan. Likewise, there is no dispute that the services are medically necessary as a result of that covered condition or were ordered by Veronica’s physician. The question in this case is whether the services provided by the LPNs are given for the treatment of Veronica. It should be noted

    that the treatment given is treatment for the insured and not treatment for the illness. The only requirement is that the treatment the insured requires result from the covered illness.

21. As indicated earlier, "treatment" is not defined in the State Plan. From its use in the plan the word does not appear to be used in a technical manner. Therefore, the ordinary meaning of the term "treatment" should be used.

22. Treatment includes things done in an effort to relieve a physical disease or infirmity. Puig v. Citicorp Life Insurance, 687 So. 2d 852 (Fla. 3d DCA 1997). A cure is not required.

23. In this case, the evidence showed that the services being rendered to Veronica were being performed in order to relieve, manage, and sustain her current condition. The services therefore constitute treatment and are covered under the State Plan.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That Petitioner’s claim be paid.

DONE AND ENTERED this 29th day of October, 1999, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1999.

COPIES FURNISHED:

Lamar Winegeart III, Esquire

219 Newman Street, 4th Floor Jacksonville, Florida 32202

Cindy Horne, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-000627

Orders for Case No: 99-000627