STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOIS T. ARNOLD, )

)

Petitioner, )

)

vs. ) Case No. 99-2809

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF STATE GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 8, 1999, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Lake Butler, Florida.

APPEARANCES

For Petitioner: Lois T. Arnold, pro se

Route 4, Box 2610

Lake Butler, Florida 32054

For Respondent: Cindy Horne, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent properly excluded coverage for care provided in the Petitioner's home to Thomas Nathan Roberts, the Petitioner's adult child, based upon the custodial care and disabilities exclusions of the State Group Health Insurance Plan?

PRELIMINARY STATEMENT

This case arose when the Division of State Group Insurance through its agent, Blue Cross and Blue Shield, denied payment for certain nursing services being provided for Thomas Nathan Roberts, the dependent son of the Petitioner, Lois T. Arnold.

The Petitioner requested a formal hearing on the denial of payment, and the matter was referred to the Division of Administrative Hearings by the Division of State Group Insurance.

The matter was noticed for hearing, and heard on

September 8, 1999. At the formal hearing, the parties agreed to submit the testimony of the doctors by deposition and to the admission of Joint Exhibit 1, the letter of denial and notice of right to a hearing, and Joint Exhibit 2, the Benefit Document.

The Petitioner testified in her own behalf and introduced Petitioner's Exhibits 2 through 6. There is no Petitioner's Exhibit 1. The Respondent called Merrill Moody. After the hearing, the depositions of Dr. Eloise Harman and Walter A. Hollinger were filed, and, pursuant to the post hearing direction of the Administrative Law Judge, the Petitioner was permitted to file as a later-filed exhibit evidence of prior coverage of her son.

The Petitioner filed letters with enclosures related to the case and the Health Insurance Portability and Accountability Act of 1996 which were read and considered. The Respondent filed a Proposed Recommended Order that was read and considered.

FINDINGS OF FACT

1. Thomas Nathan Roberts, son of Lois T. Arnold, Petitioner in this cause, was born in Starke, Bradford County, Florida, on October 10, 1967. Late Filed Exhibits.

2. Lois T. Arnold is an employee of the state, and applied for coverage of her son, Thomas Nathan Roberts, on or before August 27, 1997. The Division of State Group Insurance (DSGI) notified Mrs. Arnold on or about August 27, 1997, that Thomas Nathan Roberts (hereafter Thomas) "may continue to be carried as a dependent as long as you continue your coverage." See Petitioner’s Exhibit 2.

3. On or about May 12, 1999, Blue Cross and Blue Shield, as agent for the state’s health insurance program, determined that it would not pay for nursing care for Thomas, although it acknowledged coverage of Thomas for other services. See Joint Exhibit 1.

4. Energizer Power Systems memorialized in a letter dated September 16, 1999, that in April of 1999, it had received notice from Blue Cross and Blue Shield of Florida, the administrator of Energizer’s health insurance program, that Thomas was very close to the million dollar lifetime benefit limit of its medical plan. The letter also stated that effective May 1, 1999, Energizer removed Thomas as a dependent on the health insurance plan of Hiram Arnold, Thomas's stepfather. See Late Filed Exhibit.

5. The break in Thomas’s medical coverage was not for a period greater than 63 days.

6. Thomas’s primary care physician for a number of years has been Eloise Harman, M.D., Chief of the Division of Pulmonary Medicine and Professor of Medicine at the University of Florida. She offered her observations regarding Thomas’s condition by letters in 1997 and 1999, and in her deposition taken with regard to these proceedings. She found that Thomas has far advanced muscular dystrophy that has left him a quadriplegic and ventilator dependent. He requires continuous evaluation and assessment of his vital signs, cardiac and pulmonary status, ventilator, and skin integrity. He has a tracheotomy that requires suctioning and care together with nebulizer treatments to break up and remove secretions within his lungs. He has steel rods in his spine which makes turning and moving him extremely delicate.

7. In Dr. Harman’s opinion Thomas requires total care and skilled nursing care, and the level of care is continuous because of the severity of his condition. She would provide more than

   120 hours of skilled care weekly.

   
   

8. Medically Necessary is defined by the benefit document "means the service received (that is) required to identify or treat Illness, Injury or Mental or Nervous Disorder which a Physician has diagnosed or reasonably suspects. The service must

   (1) be consistent with the symptom, 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." (Emphasis supplied.)

9. 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. Skilled Nursing Care may also be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the Participant’s medical needs; or supervisions of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired results.

10. Registered Nurse and Licensed Practical Nurse means a person duly licensed as such by the state in which such person is engaged in the practice of nursing.

11. Custodial Care is 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.

12. Thomas is ventilator dependent. His muscles have deteriorated to the extent that he cannot breath on his own. He receives his air from a mechanical ventilator through a hose attached to a cannula inserted in a hole in his throat (Tracheotomy). If the ventilator stops, if the hose pops off, or if any portion of the mechanical or biological airway becomes stopped up, Thomas dies unless someone intervenes within a minutes or two.

13. An enlarged heart and coronary problems complicate Thomas’s health, and he has suffered some congestive heart problems.

14. Thomas also has trouble swallowing because of the loss of muscle function in his throat. His food must be pureed, and, of course, special care must be taken because of his tracheotomy. Although preparing his food and feeding him is not strictly a skilled nursing function, any blockage of his airway would be an immediate life-threatening event. He would not be able to help himself, and the person feeding him would have to be qualified to open up the airway.

15. Moving Thomas is complicated by the insertion of steel rods in his back, and his overall fragility. Extreme care must be used in moving him, and because he has feeling in his extremities, he must be moved frequently to relieve the pain.

    What would be a custodial activity for a more robust patient, is a skilled activity for Thomas.

16. This pattern of special care applies to all of the care rendered for Thomas because of the special care which must be exercised due to his condition, and the frequency with which it must be rendered.

17. Some of the services provided to Thomas are not skilled nursing services; however, it would be impractical to have the custodial services be provided by a non-nurse when a nurse must be present to provide the observation, assessment, and care which he otherwise requires. It is more cost effective to have all services performed by the skilled practitioner.

18. Thomas has been receiving 120 hours of care per week for several years. This care is rendered in 8-hour shifts by registered nurses and licensed practical nurses with special training in the care of ventilator patients. The care provided by the licensed practical nurses is under the supervision of registered nurses, and otherwise meets the latter portion of the definition of "skilled nursing care" contained in the benefit document.

19. Mrs. Arnold has not sought more hours of care for Thomas because the other hours of the week she is home and available to provide care to him having been trained to render the care necessary to sustain him. She has limited the nursing

    care requested to reduce the costs of his care and extend the period of his coverage.

20. Dr. Walter A. Hollinger, the Respondent’s expert, offered his opinion regarding the amount of skilled nursing care Thomas requires. His opinion was based upon review of the benefit document and the records of the home health care agency for a three-month period. Dr. Hollinger did not dispute that Thomas needs skilled nursing care. The focus of his opinion related to how much skilled nursing care Thomas required. In his opinion,

    120 hours of skilled nursing care was excessive based upon the stability of the patient’s condition. Dr. Harman's view is more persuasive based upon her longer period of observation and involvement with the patient.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

22. The benefit document defines Eligible Children as the Employee’s unmarried own children . . . who are over the . . . age limits at the time of the Employee’s initial enrollment in the Plan and who are mentally or physically disabled . . . shall be eligible for coverage if they are incapable of self-sustaining employment by reason of such . . . disability and chiefly dependent upon the Employee for support and maintenance; however, no benefits shall be paid by the Plan for expenses incurred as a

    result of the mental or physical disability. (Emphasis supplied.)

23. The Health Insurance Portability and Accountability Act of 1996 (the Act) became effective in June of 1997, and impacts the exclusion, quoted above, contained in the benefit document. The state’s plan must conform to the federal law’s provisions. Section 701 of the Act provides that a group health plan may impose a preexisting condition exclusion only if such exclusion relates to a condition for which diagnosis or treatment was recommended within the 6-month period ending on the enrollment date. (The enrollment date generally is the individual’s date of enrollment or the first date upon which individual might enroll in the plan.) Further, the exclusion may not extend for a period of not more than 12 months after the enrollment date; and the period of such exclusion must be reduced by the aggregate of the periods of creditable healthcare coverage prior to the enrollment date.

24. A preexisting condition exclusion is defined by the Act to be a limitation or exclusion of benefits relating to a condition based upon the fact that the condition was present before the date of enrollment, whether or not any medical diagnosis or treatment was recommended or received before such date.

25. The provision of the state’s benefit document excluding coverage of disabled children for treatment of preexisting

    conditions is impacted by the Act. There are two provisions that come into play in this case. The first is Section 701, of the Act cited above. The second, is the provision relating to special enrollment periods. It provides that the group plan will permit an employee who is eligible, but not enrolled for coverage or a dependent of such an employee if the dependent is eligible but not enrolled, to enroll under the terms of the plan if (a) the employee or dependent was covered under a group health plan at the time coverage was previously offered to the employee or dependent; (b) the employee stated in writing he/she declined enrollment because of said coverage if the plan’s sponsor required such a statement and provided notice to the employee of the requirement; (c) the employee’s or dependent’s coverage ; and

    (d) the employee requests enrollment not later than 30 days after the date of exhaustion of coverage.

26. In addition, Section 702, regarding eligibility to enroll in a group health plan, provides that the insurer may not establish rules for eligibility of any individual to enroll under the terms of the plan based on health status-related factors in relation to the individual or a dependent of the individual including, but not limited to, medical condition including both physical and mental illnesses.

27. The Act, to the extent consistent with Section 701, shall not be construed to require a group health plan to provide particular benefits other than those provided under the terms of

    such plan or coverage or to prevent the plan form establishing limitation or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan. However, this does not impact the instant case because the provision of the plan being construed is an exclusion, and not such a limitation.

28. The facts reveal that Thomas lost coverage when the policy of his stepfather’s health insurance plan reached its policy limits with regard to Thomas's treatment. This occurred on May 1, 1999. His mother had obtained a letter from the DSGI on August 27, 1997, that Thomas was covered except for matters related to the preexisting condition. Therefore, pursuant to Section 701, the preexisting exclusion provision could only be applied from the time he became eligible for coverage for 12 months, and he would obtain benefits for prior coverage towards the 12 months. Energizer and the State’s plan covered him for at least 12 months prior to May 1, 1999. Therefore, he was eligible for coverage on May 1, 1999, when he applied for coverage.

29. Further, under the provisions applicable to Special Enrollment Periods, he became eligible when his prior insurer terminated his insurance. Again, the evidence is that

    Mrs. Arnold sought to have Thomas covered under the state plan, and he was covered with the exception of matters related to the preexisting condition. When he lost coverage under his father’s plan, he met condition (c) of the special enrollment provisions.

    Conditions (a) and (b) had already been met with regard to the state plan (rather than refusing coverage, Mrs. Arnold had obtained limited coverage and presented evidence thereof) and condition (d) was met when Mrs. Arnold renewed her efforts to have Thomas covered within 30 days.

30. Therefore, to the extent that the preexisting medical condition exclusion was applicable, under the provisions of the Act, Mrs. Arnold has met the terms relating to preexisting coverage and also the terms relating to special enrollment periods. Thomas is entitled to credit for 12 months of prior health insurance coverage against the Act’s allowable 12-month exclusion period, and was eligible on May 1, 1999, for coverage under the state plan notwithstanding the exclusion.

31. Regarding the necessity of skilled nursing care, the facts support Dr. Harman’s conclusion and recommendation that Thomas needs 120 hours of skilled nursing care to safely treat his condition. He needs this care 24 hours a day; however, his mother provides this care for him for 8 hours a day and on weekends.

32. The overwhelming majority of the care provided requires skilled nurses because Thomas is such a fragile patient. That care which is "custodial" could be rendered by nurses' aides or home health aides; however, that would not obviate the need for a nurse being present while such care was rendered. Therefore, it is more cost effective to permit the nurse to perform those non-

skilled tasks. The key is the risk to the patient if his stable condition changes. In his condition, such a change could be immediate and severe and, without appropriate intervention by trained personnel, the outcome would not be good. It is the ability to assess the patient and intervene immediately that dictates the necessity for skilled nursing care.

RECOMMENDATION

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

RECOMMENDED:

That the DSGI approve 120 hours per week of skilled nursing care for Thomas Nathan Roberts commencing May 1, 1999.

DONE AND ENTERED this 22nd day of November, 1999, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 22nd day of November, 1999.

COPIES FURNISHED:

Lois T. Arnold Route 4, Box 2610

Lake Butler, Florida 32054

Cindy Horne, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

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

Tallahassee, Florida 32399-0950

Paul A. Rowell, General Counsel 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: 99-002809

Orders for Case No: 99-002809