STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH WRIGHT,

vs.

Petitioner,

Case No. 17-2675

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE GROUP INSURANCE,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy of the Division of Administrative Hearings ("DOAH") by video teleconference with locations in Lauderdale Lakes and Tallahassee, Florida, on July 14, 2017.

APPEARANCES

For Petitioner: Bradley Seldin, Esquire

The Seldin Law Firm, P.A. 1000 5th Street, Suite 200 Miami Beach, Florida 33139

For Respondent: Anita J. Patel, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

Whether Petitioner's stay at The Rehabilitation Center at Hollywood Hills LLC ("Rehab Center"), a skilled nursing facility,

is a covered benefit pursuant to the State of Florida Employees' HMO Plan ("Plan") administered by AvMed.

PRELIMINARY STATEMENT

Petitioner was a State of Florida employee who was insured through the Plan. Petitioner is seeking coverage for two stays at the Rehab Center, a skilled nursing facility, from October 17, 2016, to November 11, 2016, and from November 15, 2016, to January 14, 2017. Respondent denied the request for coverage on the basis that the stays at the Rehab Center were primarily for the purpose of rehabilitation, and therefore, not a covered benefit.

Petitioner timely contested the denial of benefits, and a Request for Administrative Hearing was filed with Respondent on January 19, 2017. Respondent referred the case to DOAH on May 9, 2017.

On July 14, 2017, the final hearing was held as scheduled.

Petitioner presented the testimony of Petitioner, Elizabeth Wright1/; Petitioner's daughter, Marie Wright; and Petitioner's sister, Lorraine Simpson. Respondent presented the testimony of Edwin Rodriguez, M.D.; Claudia Martinez; Carol Cordoba; and Kathy Flippo, registered nurse. Petitioner's Exhibits 1 through 4 were admitted into evidence. Respondent's Exhibits 1 through 15 were admitted into evidence.

Neither party ordered the transcript of the proceedings.

Both parties timely filed proposed recommended orders, which were considered in the preparation of this Recommended Order. Unless otherwise indicated, citations to the Florida Statutes or rules of the Florida Administrative Code refer to the versions in effect during the last quarter of 2016.

FINDINGS OF FACT

1. Respondent is the state agency charged with administering the state employee health insurance program pursuant to section 110.123, Florida Statutes.

2. At all times material hereto, Petitioner was a member of the Plan. AvMed is the third party administrator for the Plan at issue in this cause. As the third party administrator, AvMed provides utilization and benefit management services.

3. On or about September 21, 2016, Petitioner suffered a hemorrhagic cerebral vascular accident, commonly referred to as a stroke, while in her home. Petitioner was transported to Jackson Memorial Hospital for treatment.

4. Petitioner was discharged from Jackson Memorial Hospital on October 17, 2016. Upon discharge on October 17, 2016, Petitioner was admitted to the Rehab Center.

5. On October 11, 2016, AvMed received a pre-authorization request for inpatient admission for rehabilitative services at the Rehab Center from Petitioner's medical provider. On the same

   
   

   day, AvMed denied the request for pre-authorization on the basis that an inpatient admission to the skilled nursing facility for the purpose of rehabilitation is not a covered benefit. A copy of the denial letter was sent to Petitioner, the physician that made the request for coverage, the Rehab Center, and was provided to the family at the hospital by a case manager.

6. Despite notice of the denied pre-authorization by AvMed, six days later, on October 17, 2016, Petitioner was admitted into the Rehab Center. Petitioner remained at the facility until November 11, 2016.

7. While at the facility, Petitioner experienced pain and swelling in her right leg and was transferred to Memorial Hospital on November 11, 2016, on an emergency basis. Petitioner had a deep vein thrombosis ("DVT") blood clot and had a DVT filter inserted. Petitioner remained at the hospital until November 15, 2016.

8. Although Petitioner was not actually "discharged" from the Rehab Center prior to her emergency admission to Memorial Hospital, Memorial Hospital submitted a pre-authorization request to return Petitioner to the Rehab Center for the purpose of rehabilitation. On November 15, 2016, AvMed denied the request on the basis that inpatient stays for the purpose of rehabilitation are not a covered benefit. A copy of the denial letter was provided to Petitioner, the requesting physician, the

   
   

   Rehab Center, and was provided to the family by the case manager at the hospital.

9. Despite being provided notice of the denial by AvMed, on November 15, 2016, Petitioner transferred back to the Rehab Center where she remained until discharge on January 14, 2017.

10. On November 30, 2016, Petitioner, by and through her daughter, submitted a request for a Level I Appeal to AvMed. In the request for the Level I Appeal, Petitioner's daughter stated it is "very important that [Petitioner] gets proper rehabilitation care . . . [p]lease advise if rehab treatment will be covered." The Level I Appeal request only included an attachment of the denial of pre-authorization for the stay commencing in November 2016. There was no indication that Petitioner was appealing the pre-authorization denial from October. However, Petitioner referenced both denials in the Level II Appeal request; therefore, both stays were considered on the Level II Appeal, and both stays are being addressed in this action.

11. Pursuant to the plan document, rehabilitative services is a covered benefit but is subject to certain restrictions. Specifically, the Plan states, in pertinent part:

    Rehabilitative services shall not be covered when:

    
    

    The Health Plan member was admitted to a Hospital or other facility primarily for the

    
    

    purpose of providing rehabilitative services; or

    
    

    The rehabilitative services maintain rather than improve a level of physical function, or where it has been determined that the services shall not result in significant improvement in the Health Plan Member's condition within a 60-day period.

    
    

    Resp. Ex. 1, at 46 (emphasis added).

    
    

12. The Plan defines "Other Health Care Facility" as follows:

    Any licensed facility, other than acute care Hospitals and those facilities providing services to ventilator dependent patients, which provides inpatient services such as skilled nursing care and rehabilitative services.

    
    

    Resp. Ex. 1, at 9.

    
    

13. The Rehab Center is an "other health care facility" pursuant to the terms of the Plan. The Rehab Center provides skilled care, including skilled nursing and rehabilitation services.

14. Skilled nursing facilities provide two types of services. The first type of service is custodial care. Custodial care is when a person lives in the facility for reasons other than healthcare needs. The second type of service is skilled care. There are two types of skilled care: skilled nursing services and rehabilitation services. Skilled nursing is applicable when a patient needs the services of someone with

    
    

    medical licensure equal to or greater than a licensed registered nurse, and those services are needed on a daily basis. An example of skilled nursing services is administration of intravenous medication, wound care, tracheotomy care, and assistance with a ventilator. On the other hand, rehabilitation services do not require the services of a medical professional with a minimum licensure of registered nurse. Rather, rehabilitation services are comprised of physical therapy, occupational therapy, and speech therapy.

15. Occupational therapy is a covered benefit per the Plan only if the therapy is provided as a home health service, a hospice service, or as treatment for Autism Spectrum Disorder. The occupational therapy services received by Petitioner were in a skilled nursing facility and were not for the purpose of treatment of Autism; therefore, the therapy would not be a covered service under the Plan.

16. The Level I Appeal was reviewed by Edwin Rodriguez, M.D., a Medical Director at AvMed. Dr. Rodriguez specializes in internal medicine, the practice of medical care for the adult population. Approximately 60 to 65 percent of the practice of internal medicine is geriatric medicine, which is the specialty that focuses on medical care for the elderly. As a practicing physician, Dr. Rodriguez has worked in a skilled nursing facility. A primary function of Dr. Rodriguez's current position

    
    

    is utilization management. Utilization management includes the process of reviewing a request for coverage to determine whether the service is a covered benefit pursuant to the Plan and, if it is a covered benefit, reviewing the service for medical appropriateness.

17. In Dr. Rodriguez's opinion, Petitioner's stays at the Rehab Center commencing in October and in November were primarily for the purpose of rehabilitation, and therefore, not a covered benefit.

18. Dr. Rodriguez testified that the discharge summary from Jackson Memorial Hospital indicated that Petitioner needed rehabilitation services. Specifically, the discharge summary recommended a "protracted rehab course in the setting of a skilled nursing facility." The discharge summary also recommended physical therapy, occupational therapy, and speech therapy as follow-up care. Dr. Rodriguez testified that the Jackson Memorial Hospital discharge summary did not indicate any need for skilled nursing.

19. The discharge summary indicated that at the time of discharge, Petitioner had a new onset of Atrial Fibrillation ("AFib"), a resolved urinary tract infection, and a Foley catheter. Dr. Rodriguez testified that none of these conditions required skilled nursing. Dr. Rodriguez testified that

    
    

    Petitioner's AFib was rate-controlled, meaning it was stabilized, and therefore, did not require skilled nursing care.

20. The discharge summary indicated Petitioner had a urinary tract infection, which had resolved at the time of discharge. Dr. Rodriguez testified that a urinary tract infection does not require skilled nursing unless intravenous antibiotics are required. There was no evidence that Petitioner was taking any intravenous medications. All of the medications listed in the medical records from Jackson Memorial Hospital, Memorial Hospital, and the Rehab Center were oral medications that did not require any skilled care. Dr. Rodriguez further testified that although the discharge summary indicated that Petitioner had dysphagia, or difficulty swallowing, that Petitioner passed a swallow test prior to discharge from Jackson Memorial Hospital.

21. Dr. Rodriguez testified that Petitioner's Foley catheter did not require skilled nursing. A Foley catheter is a thin tube that goes directly into the bladder through the urethra. A Foley catheter does not require skilled care, in fact, many people leave skilled nursing facilities with Foley catheters. Dr. Rodriguez testified that Petitioner's specific medical conditions and physical limitations did not require skilled care for the Foley catheter. Petitioner's catheter was to be changed once per month, and according to the Rehab Center

    
    

    records, the catheter was changed on an outpatient basis by a physician located outside of the Rehab Center. Furthermore, pursuant to the Plan, catheter care is considered "custodial care" and is excluded from coverage.

22. Dr. Rodriguez testified that the records from the Rehab Center for the stay commencing in October indicate Petitioner's stay was for rehabilitation services, specifically occupational therapy, speech therapy, and physical therapy. The records include an occupational therapy care plan, occupational therapy progress notes, and a speech therapy plan for treatment. The records further include progress notes that include an "assessment and plan" to address the hemorrhagic cerebral vascular accident to include physical therapy and occupational therapy. Dr. Rodriguez testified that the records did not indicate any need for skilled nursing care.

23. Dr. Rodriquez testified that the records from the Rehab Center for the stay commencing in November also evidence that Petitioner was primarily receiving rehabilitative services, specifically physical therapy and occupational therapy services. Petitioner presented to the Rehab Center with motor control deficits, right-side balance hemiplegia, balance deficits, impaired coordination, poor functional activity tolerance, and poor safety awareness. A physical therapy plan was completed in order to address these issues. Petitioner also presented with a

    
    

    decline in her functioning activities of daily living, such as self-feeding and functional mobility. An occupational therapy plan was completed in order to address these issues.

    Dr. Rodriguez testified that there was no documentation as to the need for skilled nursing care.

24. The claim forms submitted by the Rehab Center to AvMed also indicate that Petitioner was primarily receiving rehabilitation services, specifically physical therapy, occupational therapy, and speech therapy.

25. On December 1, 2016, AvMed denied the Level I Appeal on the basis that the inpatient stay commencing in November for the purpose of rehabilitation is not a covered benefit.

26. By letter dated December 5, 2016, a request for a Level II Appeal was submitted by Petitioner's daughter, Marie Wright. The letter requests coverage for acute rehabilitation. The letter specifically alleged that AvMed refused to "grant [Petitioner] acute and skilled rehabilitation to put [Petitioner] on her feet again." Ms. Wright states that she wants Petitioner to "receive the Acute Rehabilitation [Petitioner] so desperately needs and deserves."

27. As supportive documentation for the Level II Appeal request, Ms. Wright attached a physical therapy evaluation from Memorial Hospital.

    
    

28. Kathy Flippo, a registered nurse and employee of Respondent, reviewed the Level II Appeal. Ms. Flippo's opinion was that the stays at the Rehab Center were primarily for purposes of rehabilitation. Ms. Flippo testified that the focus of the treatment at the Rehab Center for both stays was rehabilitation services to provide assistance and/or training with activities of daily living, such as moving in bed, getting out of bed, and feeding. Ms. Flippo testified that she reviewed the records from Jackson Memorial Hospital, the Rehab Center, and Memorial Hospital, and there was no indication that Petitioner needed skilled nursing services. Ms. Flippo testified that Petitioner's medications were all oral and the Foley catheter did not require skilled care. Ms. Flippo testified that the statements of Petitioner's representative, Ms. Wright, further confirmed that the intent was for Petitioner to receive rehabilitation at the Rehab Center.

29. By letter dated December 21, 2016, Respondent notified Petitioner of the decision to deny the claim as a non-covered service.

30. Ms. Wright testified that her mother needed total care for all of her needs and was not in need of rehabilitation services until after Petitioner's discharge from the Rehab Center on January 14, 2017. Ms. Wright testified that she did call PeopleFirst to request a change in Petitioner's health plan as

    
    

    rehabilitation services were not covered under the current AvMed plan. Ms. Wright stated that she did not recall the timeframe of the call but that she was asking about the possibility of changing the plan, not because Petitioner needed rehabilitation "right then and there," but that she was looking at "options for down the road."

31. However, the call records from PeopleFirst evidence that Ms. Wright contacted PeopleFirst on October 19, 2016, in an effort to "upgrade" Petitioner's insurance to a plan that covers rehabilitation services. During the call, Ms. Wright was informed that any changes to the plan would not take effect until January 1, 2017. In response, Ms. Wright stated, "Ok, so that won't help us, I mean it could help us for her second step of rehab but it is not going to help us now. Right now we are you know stuck in the middle between acute rehab and Avmed and Medicare so I was hoping that I could just fix it by upgrading her plan if it was going to work immediately."

32. Furthermore, Ms. Wright's own statements in the Level I Appeal request dated November 30, 2016, and the Level II Appeal request dated December 5, 2016, both indicate that Ms. Wright's intent was to secure coverage for rehabilitation services well before Petitioner's discharge on January 14, 2017.

33. Petitioner's sister, Lorraine Simpson's, call to PeopleFirst also confirms that Petitioner was placed in the Rehab

    
    

    Center for the purpose of obtaining rehabilitation services. Ms. Simpson called PeopleFirst on December 27, 2016, in order to upgrade Petitioner's policy. Ms. Simpson stated Petitioner "needs rehab and no one is able to give it to her because she hasn't got the coverage."

34. Additionally, the family placed calls to AvMed regarding coverage of inpatient rehabilitation at a Rehab Center. On October 8, 2016, three days prior to the pre-authorization denial and seven days prior to admission to the Rehab Center, Ms. Simpson was notified that inpatient rehabilitation services at a skilled nursing facility are not a covered benefit. On October 14, 2016, three days before Petitioner was admitted to the Rehab Center, Ms. Simpson again contacted AvMed and was notified that the Plan does not cover inpatient admissions for the purpose of rehabilitation.

35. At no time was Petitioner or her family advised that either stay at the Rehab Center would be covered. While

    Ms. Wright and Ms. Simpson testified that Claudia Martinez with AvMed notified them that the stay commencing in October would be covered, Ms. Martinez testified that she did not tell Petitioner or her family that the stay would be covered and that, in fact, she told them that the request for pre-authorization was denied.2/ Ms. Martinez further testified that Ms. Wright asked her about changing the health plan since rehabilitation services were not

    
    

    covered, and Ms. Martinez informed Ms. Wright to contact member services. Ms. Martinez confirmed that AvMed does not have any authorizations on file for the stays in question.

36. Ms. Wright testified that AvMed's approval of 100 days at the facility was documented in Petitioner's Exhibit 2. However, the form entitled "Insurance Co-Payment" is not a document generated or used by AvMed. The document itself has the name of the skilled nursing facility, The Rehabilitation Center at Hollywood Hills LLC, on the bottom. Furthermore, the document states that the policy covers up to 100 days at a skilled nursing facility, which corresponds with Medicare's maximum for coverage as opposed to the State of Florida coverage for skilled nursing which covers a maximum of 60 days in a skilled nursing facility.

37. Due to Petitioner's age, she was eligible for Medicare.

    
    

    The Plan provides for coordination of benefits when a member is Medicare eligible. When the member is an active employee, the Plan is typically the primary payor while Medicare is the secondary payor.3/ In a case for which the Plan is a primary payor, and the medical claim at issue is not a covered benefit, Medicare is able to provide coverage for the claim. In this case, Medicare covered a portion of Petitioner's stay at the Rehab Center.

38. Unlike the Plan at issue in this action, Medicare does not limit or exclude coverage for rehabilitation stays in a

    
    

    skilled nursing facility. Medicare covers up to 100 days in a skilled nursing facility. Medicare typically covers 100 percent of the inpatient stay for the first 20 days. For days 21 through 100, the member is responsible for a co-payment of $161.00 per day.

    CONCLUSIONS OF LAW

    
    

39. DOAH has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

40. Respondent is the state agency charged by the Legislature with the duty to oversee the administration of the state group insurance program. § 110.123, Fla. Stat.

41. The Plan is a health insurance benefit enacted by the Florida Legislature and offered by Respondent. § 110.123, Fla. Stat.

42. In an administrative proceeding, the party asserting the affirmative of an issue has the burden to prove by a preponderance of the evidence that it is entitled to the relief sought. Alexander v. Dep't of Mgmt. Servs., Case No. 13-2095, RO at 20 (Fla. DOAH Aug. 16, 2013)(citing Young v. Dep't of Cmty.

    Aff., 625 So. 2d 831, 833-834 (Fla. 1993)); Dep't of Transp. v.

    
    

    J.W.C. Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Balino v.

    
    

    Dep't of HRS, 348 So. 2d 349, 350 (Fla. 1st DCA 1977). Thus,

    
    

    Petitioner has the initial burden of demonstrating by a preponderance of the evidence that she is entitled to the relief

    
    

    sought. If Petitioner meets her burden, the burden then shifts to Respondent to prove that the requested relief was not covered due to a policy exclusion. Id. (citing Herrera v. C.A. Seguros

    Catatumbo, 844 So. 2d 664, 668 (Fla. 3d DCA 2003), and State Comprehensive Health Ass'n v. Carmichael, 706 So. 2d 319, 320

    (Fla. 4th DCA 1997)).

    
    

43. The Plan provides coverage for rehabilitation services; however, there are several limitations on coverage. Rehabilitative services are not covered when the member is admitted to a skilled nursing facility primarily for the purpose of providing rehabilitative services.

44. Petitioner argues that the stays should be covered because Petitioner was very sick and was in need of skilled care. There is no dispute that Petitioner was sick and in need of skilled care, the question here is whether that skilled care was primarily rehabilitation or skilled nursing care.

45. The overwhelming weight of the evidence supports a finding that both stays at the Rehab Center were primarily for the purpose of rehabilitation. The evidence presented further substantiates a finding that Ms. Wright's and Ms. Simpson's intent in placing Petitioner in the Rehab Center was to provide rehabilitation services to Petitioner. The Level I and Level II Appeal requests and the phone calls to AvMed and PeopleFirst all indicate that Petitioner was placed in the facility, not only for

    
    

    the primary purpose of rehabilitative services but for the sole purpose of rehabilitation services. Additionally, the evidence shows that Petitioner and/or her family were placed on notice prior to each stay at the Rehab Center that the stays would not be covered.

46. It is important to note that the Plan requires pre- authorization for stays at a skilled nursing facility. The requirement of pre-authorizing stays serves to notify members before they incur the expense of a service, whether or not that service is a covered benefit of the Plan. This allows the member to make an informed decision regarding their medical care. In the case of a denial, members are free to follow through with the medical service with an understanding that the Plan will not cover associated expenses.

47. On numerous occasions Petitioner and her family were made aware that the stays at the Rehab Center would not be covered. In the case of the October admission, they were made aware several days prior to admission to the facility. In the case of the November admission, they were made aware on the same day as the request for pre-authorization. Additionally, throughout the entire appeals process, Petitioner remained at the facility with the knowledge that the Plan was denying coverage for the stays.

    
    

48. Petitioner questions where the Plan wanted Petitioner to go upon release from her admissions to Jackson Memorial Hospital and Memorial Hospital. Importantly, the ultimate decision regarding need for treatment, the type of treatment needed, and the appropriate level of treatment is a decision that is made by the physician and the member. Respondent and AvMed merely make decisions related to coverage under the health plan.

49. The fact that a service is recommended or is considered to be medically necessary by a member's treating physician does not mean that the service is a covered benefit pursuant to the Plan. If that was the case, the insurance company would ostensibly pay every claim submitted. Even if services are determined to be medically necessary, they are not payable under the Plan if the service is specifically limited or excluded. Therefore, regardless of whether the rehabilitation services were necessary in this case, it would not be a covered benefit due to the applicable limitation/exclusion. It should be noted that there were other options available to Petitioner, such as home health services.

50. The totality of the evidence in this case shows that not only was the primary reason for the stay at the Rehab Center for rehabilitation, it was the sole reason for her stay. As such, the stays at the Rehab Center were a non-covered benefit, and Petitioner's request for coverage should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, issue a final order denying Petitioner's claim for coverage of the stays at The Rehabilitation Center at Hollywood Hills LLC, and further, denying Petitioner's request for attorney's fees and costs.

DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2017.

ENDNOTES

1/ Although Petitioner appeared, was sworn, and was present for the final hearing, she was physically unable to testify.

2/ The undersigned does not attribute the contradiction to deceit by Petitioner's sister and daughter. Rather, it is clear that this was a highly stressful and emotional time for them as they sought the best care possible consistent with Petitioner's physician's recommendation. It is possible that someone from the Rehab Center erroneously informed the family that benefits were

pre-authorized through the Plan or that they simply misunderstood.

3/ Due to Petitioner's decades of dedicated service to the State as a professor who never took sick time, she had a significant bank of leave available and she remained on the payroll as an employee for an extended period of time after her stroke. This resulted in the Plan being the primary insurance coverage for her stays in the hospitals and the Rehab Center, rather than Medicare.

COPIES FURNISHED:

Anita J. Patel, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 (eServed)

Bradley Seldin, Esquire The Seldin Law Firm, P.A. 1000 5th Street, Suite 200 Miami Beach, Florida 33139 (eServed)

J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)

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: 17-002675

Orders for Case No: 17-002675