The Issue The issue is the amount payable to Respondent, Agency for Health Care Administration (AHCA), in satisfaction of Respondent’s Medicaid lien from a settlement received by Petitioner, James T. Stirk, from a third party pursuant to section 409.910, Florida Statutes (2015).
Findings Of Fact On January 24, 2014, Petitioner, then 25 years old, was involved in a serious motorcycle accident. Petitioner struck the rear of a truck with a trailer near mile marker 129 on I-75 in Lee County, Florida. Petitioner was taken to Lee Memorial Hospital where he remained in a coma for a couple of months. He sustained a broken back at T-4 level, two broken arms, a fractured neck and internal injuries. As a result of his injuries, Petitioner is now a paraplegic from the chest down and confined to a wheelchair. Respondent is the state agency authorized to administer Florida’s Medicaid program. See § 409.902, Fla. Stat. Prior to the accident, Petitioner worked as an appliance and air conditioning repairman, earning $16 an hour. After the accident and his recovery, Petitioner has been unable to work and his only source of income is through a Social Security disability check of approximately $1,083 monthly. He believes he is now eligible for Medicare, which should start “next month” (August 2016). He rents a home ($750 monthly) and lives there with his four-year-old son. Petitioner brought a negligence claim against the truck driver to recover his damages sustained in the crash. Petitioner settled his negligence claim for $95,000.00. During the pendency of Petitioner’s claim, AHCA was notified of the third-party negligence claim. AHCA has not filed an action to set aside or otherwise object to Petitioner’s $95,000.00 settlement. Petitioner’s past medical care related to his motorcycle accident totaled approximately $929,589.46. Petitioner was insured under a Florida Blue ERISA Health Insurance Plan (Florida Blue) for a portion of the time he received medical treatment. He subsequently became eligible for Medicaid after being unable to work after the accident. Florida Blue paid approximately $501,487.30 towards Petitioner’s medical care. Medicaid paid $47,008.81 towards Petitioner’s medical care. No portion of this amount was paid for future medical expenses and no payments were made in advance for medical care. By letter dated January 20, 2016, AHCA, through its contractor Xerox Recovery Services, asserted a lien of $47,008.81 against Petitioner’s third-party negligence claim and settlement thereof. By letter dated January 21, 2016, Petitioner’s counsel provided Xerox Recovery Services the settlement information and requested the Medicaid lien be proportionally reduced to $714.05, 1.9 percent of the total value of Petitioner’s claim. By letter dated February 18, 2016, AHCA, through its contractor, applied the statutory formula to Petitioner’s gross settlement and requested a check in the amount of $32,062.25 for full satisfaction of its lien. Petitioner’s attorney forwarded payment of $32,062.25 from Petitioner’s settlement proceeds. The payment of these funds to AHCA constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). Section 409.910(11)(f), provides, in pertinent part, as follows: (f) [I]n the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party, the amount recovered shall be distributed as follows: After attorney’s fees and taxable costs . . . one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid. The remaining amount of the recovery shall be paid to the recipient. For purposes of calculating the agency’s recovery of medical assistance benefits paid, the fee for services of an attorney retained by the recipient . . . shall be calculated at 25 percent of the judgement, award, or settlement. Pursuant to the formula set forth in 409.910(11)(f), Respondent should be reimbursed $32,062.25, the amount set forth in the February 18, 2016, letter. However, the statute provides a method by which a recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula set forth in subsection (11)(f). “In order to successfully challenge the amount payable to the agency, the recipient must prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency” pursuant to the formula. § 409.910(17)(b), Fla. Stat. The testimony spoke in generalities and global assessments. The testimony did not explicitly disclose that a lesser amount of the total recovery should be allocated for past and future medical expenses in this instance. Ty Roland is an attorney with over 20 years’ experience representing plaintiffs in personal injury and wrongful death claims. The majority of Mr. Roland’s cases have been in the Fort Myers area. Mr. Roland was accepted as an expert in the valuation of the damages (in personal injury cases), and testified as to his opinion of the total value of damages in Petitioner’s underlying action. In formulating his opinion of the total value of Petitioner’s damages, Mr. Roland considered cases he has previously tried. Petitioner’s suit demanded $5 million; however, Mr. Roland estimated the value of Petitioner’s suit at $10 million. There were no specifics as to the elements of damages. Total recovery for Petitioner’s damages through settlement was $95,000, roughly 1.9 percent of the estimated total value of his damages. The parties stipulated the amount due under section 409.910(11)(f) is $32,062.25.
The Issue The issue in this case is whether the parties’ agreement in paragraph 9 of the Medicaid Provider Agreement was to allow for arbitrary and capricious termination without cause.
Findings Of Fact On October 10, 1995, the Petitioner, Food With A Flair, Inc., entered into a Non-Institutional Professional and Technical Medicaid Provider Agreement (the Provider Agreement) with the Respondent, the Agency for Health Care Administration (the AHCA). Through this Provider Agreement, the Petitioner became a participant in the Florida Medicaid Program administered by the AHCA. The Petitioner’s role in the Program was to provide meals for the Program’s HIV clients. The Provider Agreement had 12 numbered paragraphs, 8 and 9 of which stated: The provider and the Agency agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Agency may terminate this agreement in accordance with Chapter 120, F.S. During the time the Petitioner was providing meals under the Provider Agreement, the AHCA received complaints about the meals being provided by the Petitioner and the manner in which the Petitioner’s meals and services were being provided. Although the complainants have not been identified, some may have been competitors of the Petitioner, and some were anonymous. The AHCA investigated the complaints and decided that, if true, they were serious enough to warrant termination of the Petitioner’s Provider Agreement. However, the AHCA chose not to terminate the Petitioner’s Provider Agreement for cause out of concern that the release of the identity of some of the Program’s HIV clients would result, in violation of their legal rights to confidentiality. For that reason, the AHCA chose to terminate the Petitioner’s Provider Agreement without cause. The AHCA’s Notice of Termination issued on November 25, 1996, not only purported to terminate the Petitioner’s Provider Agreement “thirty days from receipt of this notice,” it also gave the Petitioner notice that it had “the right to request a hearing pursuant to Section 120.57, Florida Statutes.” The Provider Agreement was drafted by Unisys Corporation in consultation with the AHCA’s General Counsel. It is a form agreement, and the terms were not negotiable by the Petitioner. If the Petitioner wanted to participate in the Program, it had to accept the form agreement. The Provider Agreement was signed by Thomas Barcia as president/director of the Petitioner and by W. A. Hardy, Jr., apparently an employee of Unisys, on behalf of the AHCA. Neither Hardy nor the AHCA’s General Counsel testified at final hearing. Neither of the AHCA’s two witnesses could testify as to the meaning of the Provider Agreement, particularly paragraphs 8 and 9. Thomas Barcia testified that he understood the Provider Agreement to mean that the Petitioner could terminate on thirty days notice but that termination by the AHCA also had to be fair and for just cause and subject to due process; otherwise, he thought the Provider Agreement was to last for five years, or for as long as the Petitioner’s services were needed. In support of the Petitioner’s interpretation of the Provider Agreement, Barcia pointed to paragraph 1 of the Provider Agreement, which required the Petitioner to “keep for 5 years complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . .” Barcia also testified that he and others made investments in the Petitioner’s business that would not have been made had they known that the AHCA could terminate the Provider Agreement without cause. He testified that major personal and corporate financial hardships would befall him and the Petitioner if the AHCA terminated the Provider Agreement on 30 days notice, including defaults on building and vehicle leases; he testified that personal and corporate bankruptcy could result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the AHCA enter the final order reinstating the Petitioner’s Medicaid Provider Agreement without prejudice to possible proceedings to terminate the Provider Agreement for cause. RECOMMENDED this 16th day of June, 1997, at Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1997. COPIES FURNISHED: Gordon Scott, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 R. Jeffrey Stull, Esquire Daniel R. Kirkwood, Esquire 602 South Boulevard Tampa, Florida 33606 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue to be determined is the amount payable to the Agency for Health Care Administration (AHCA or Respondent) in satisfaction of its $157,983.63 Medicaid lien asserted against medical malpractice settlement proceeds received by Hunter Lamendola (Hunter), a minor, by and through his mother and natural guardian, Ashley Lamendola (Petitioner).
Findings Of Fact On June 26, 2012, Petitioner presented to the hospital with a history of contractions for six hours prior to her arrival at the hospital. She had been placed on bed rest for gestational hypertension five days prior to arriving at the hospital. When she arrived, she had hypertension. Petitioner was admitted to the labor and delivery unit at 8:33 p.m. Petitioner was placed on a fetal monitor and progressed through her course of labor. Her initial fetal monitoring showed the baby was healthy and well-oxygenated, however, throughout the course of labor, the fetal monitor exhibited signs that the baby was in significant distress. At 4:01 a.m. on June 27, 2012, Petitioner was given an epidural, and after a course of labor, Hunter was delivered at 3:47 p.m. through an operative vaginal delivery. Hunter suffered permanent and catastrophic brain damage during his birth. As a result, Hunter is unable to eat, speak, toilet, ambulate, or care for himself in any manner. Hunter’s medical care related to the delivery was paid by Medicaid. The Medicaid program through AHCA provided $157,983.63 in benefits. The Medicaid program through the Department of Health Children’s Medical Services Title XIX MMA – Pedicare (DOH), provided $26,189.66 in benefits; the Medicaid program through a Medicaid-managed care organization, known as Amerigroup Community Care (Amerigroup), provided $51,696.99 in benefits; and the Medicaid program through a Medicaid-managed care organization, known as WellCare of Florida (WellCare), provided $13,239.19 in benefits. Accordingly, the sum of these Medicaid benefits, $249,109.47, constituted Hunter’s entire claim for past medical expenses. Petitioner brought a medical malpractice action against the medical providers and staff responsible for Hunter’s care (Defendant medical providers) to recover all of Hunter’s damages, as well as her own individual damages associated with Hunter’s injuries. The medical malpractice lawsuit was settled through a series of confidential settlements totaling $10,000,000 and this settlement was approved by the Court. During the pendency of Hunter’s medical malpractice action, AHCA was notified of the action, and AHCA asserted a $157,983.63 Medicaid lien against Hunter’s cause of action and settlement of that action. AHCA, through the Medicaid program, spent $157,983.63 on behalf of Hunter, all of which represents expenditures paid for Hunter’s past medical expenses. No portion of the $157,983.63 paid through the Medicaid program on behalf of Hunter represent expenditures for future medical expenses, and Medicaid did not make payments in advance for medical care. Application of the formula set forth in section 409.910(11)(f), Florida Statutes, to Hunter’s settlement requires payment to AHCA of the full $157,983.63 Medicaid lien. Petitioner has deposited the full Medicaid lien amount in an interest-bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). At the final hearing, Mr. Harwin, who represented Hunter and his family in the underlying medical malpractice action, testified, and was accepted, without objection, as an expert in the valuation of damages suffered by injured parties. Mr. Harwin is a member of several trial attorney associations, stays abreast of jury verdicts relative to birth injuries, and ascertains the value of damages suffered by injured parties as a routine part of his practice. Mr. Harwin was familiar with and explained Hunter’s catastrophic brain injury giving rise to Petitioner’s claim. He also explained that, as a result of Hunter’s injury, Hunter is blind, fed through a feeding tube, unable to control his arms, legs or head, and suffers between six to eight seizures per day. Mr. Harwin testified that Hunter’s injury has also had a devastating impact on Hunter’s mother, Ashley Lamendola. According Mr. Harwin, considering Hunter’s past medical expenses, a life care plan for Hunter’s care prepared by an economist, and the extent of non-economic damages, and in light of determinations of mock juries and a jury consultant in this case, as well as Mr. Harwin’s familiarity with jury verdicts reached in similar cases, Hunter and his mother’s damages have a value in excess of $35,000,000. Mr. Harwin’s testimony as to the value of Petitioner’s claim was credible and is accepted. Petitioner also presented the testimony of Mr. Barrett, who was accepted as an expert in the valuation of damages. Mr. Barrett has been accepted as an expert in valuation of damages in a number of other Medicaid lien cases before DOAH. Mr. Barrett has been a trial attorney for 41 years, with a primary focus on plaintiff personal injury cases, including medical malpractice, medical products liability, and pharmaceutical products liability. Mr. Barrett stays abreast of jury verdicts and often makes assessments concerning the value of damages suffered by injured parties. After familiarizing himself with Hunter’s injuries through review of pertinent medical records and Petitioner’s exhibits, Mr. Barrett offered his opinion, based upon his professional training and experience, as well as review of comparable jury verdicts, that a conservative value of the damages suffered would be “$35,000,000 to $50,000,000.” Mr. Barrett’s testimony as to the value of Petitioner’s claim was credible and is accepted. AHCA did not call any witnesses, present any evidence as to the value of Petitioner’s claim, or propose a differing valuation of the damages. Based upon the unrebutted evidence presented by Petitioner’s experts, it is found that a conservative value of Petitioner’s claim is $35,000,000. Attorney’s fees for the underlying medical malpractice case leading to Petitioner’s $10,000,000.00 settlement totaled $4,500,000.00, with costs of $490,486.33. While the formula under section 409.910(11)(f) determines amounts distributable to Medicaid after attorney’s fees and taxable costs, there is no language in section 409.910(17)(b) suggesting that attorney’s fees or costs should be subtracted from settlement proceeds in determining whether a lesser portion of the total recovery should be allocated to reimburse Medicaid. Costs and attorney’s fees are not an element of Petitioner’s damages and were not subtracted from the settlement proceeds in determining whether a lesser portion of the total recovery should be allocated to AHCA’s Medicaid lien. Considering the valuation of Petitioner’s claim at $35,000,000.00, Petitioner’s $10,000,000.00 settlement represents only a 10/35ths recovery of Petitioner’s damages. Multiplying that same 10/35 fraction to the $157,983.63 paid by AHCA through the Medicaid program for past medical expenses results in the proportional sum of $45,138.18 from the settlement proceeds available to satisfy AHCA’s Medicaid lien.
The Issue The issue in this proceeding is the amount payable to the Agency for Health Care Administration (Respondent) to satisfy a Medicaid lien under section 409.910, Florida Statutes (2015).1/
Findings Of Fact Nakila Merriex is the natural mother and legal guardian of Nivea Merriex (Nivea). At the time of her birth on November 30, 2011, Nivea suffered a shoulder injury and damage to the brachial plexus nerve. Nivea underwent surgery and subsequent physical therapy to treat the deficit related to the shoulder injury and nerve damage. The Petitioner filed a lawsuit against parties involved in Nivea’s birth and recovered monetary damages through settlement of the lawsuit. The terms of the settlement are confidential. Nivea also required speech therapy to treat a disorder wholly unrelated to the shoulder damage and nerve injury. The physical therapy and the speech therapy were delivered by the same provider, Lampert’s Home Therapy. For reasons unknown, Lampert’s Home Therapy utilized the primary billing diagnosis code of “9534-Brachial Plexus Injury” for both the physical therapy and the speech therapy services in submitting the claims to Medicaid. In calculating the Medicaid lien, the Respondent included all the charges for services rendered by Lampert’s Home Therapy. The Medicaid lien at issue in this case is for $37,679.56. According to the billing records admitted into evidence at the hearing, $5,603.54 of the charges billed by Lampert’s Home Therapy and paid by Medicaid were solely attributable to speech therapy services. Nivea’s speech disorder was not the subject of litigation. The Petitioner has received no award of damages from a third party related to the speech disorder. At the commencement of the hearing, the Petitioner conceded responsibility for satisfying the amount of the Medicaid lien related to charges for physical therapy services provided to treat the shoulder injury and nerve damage. Deducting the charges incurred for speech therapy from the total Medicaid lien results in a remaining lien of $32,076.02.
The Issue The issue to be determined is what amount of the $10,652.23 Medicaid lien held by Respondent, Agency for Health Care Administration ("Respondent" or "Agency"), is recoverable by Respondent from the $65,000.00 settlement reached by Petitioner, Tya-Marie Savain ("Petitioner" or "Savain"), in her related personal injury action.
Findings Of Fact Based on the stipulation between the parties, the evidence presented and the record as a whole, the undersigned makes the following findings of fact: On the afternoon of May 27, 2015, Petitioner, who was 19 years of age, was a pedestrian walking northbound across Forrest Hill Boulevard in West Palm Beach, Florida. As she was crossing the road in daylight, she was hit by a vehicle operated by Kenneth Knowles. (JPHS p. 5, ¶ 1). As a result of the collision, Petitioner suffered a fractured femur requiring open reduction internal fixation to repair her leg and a second surgery to remove the medical hardware. Petitioner suffered additional injuries (during the accident), including a left eye laceration, and road rash with scarring on her hands, elbows, chin, ears, forehead, mouth, and other body parts. (JPHS p. 5, ¶ 2). Respondent expended $10,652.23 in medical assistance through its Medicaid program for the benefit of Petitioner related to her fractured femur and the two resulting surgeries caused in the accident. (JPHS p. 5, ¶ 4). Petitioner’s extensive injuries necessitated surgery and resulted in significant medical treatment and related medical expenses (see, e.g., Pet. Exs. 2-12, 23). Petitioner brought a personal injury action for negligence against the liable third party and driver, Kenneth Knowles, in Palm Beach County, Florida. Kenneth Knowles had bodily injury coverage with Allstate Insurance Company in the amount of $15,000.00. Knowles paid an additional $50,000.00 out of his pocket resulting in a gross settlement of $65,000.00 for the personal injury claim brought by Savain.4/ (JPHS p. 5, ¶ 3). Following resolution of Petitioner’s personal injury action, her counsel advised the Agency of the settlement through correspondence dated April 10, 2017. Counsel explained to the Agency that Savain would not be recovering the full value of her damages and requested that Respondent accept a reduced amount in full satisfaction of its Medicaid lien. (JPHS p. 5, ¶ 6). Respondent replied to Petitioner’s counsel in writing on June 22, 2017, and stated that Medicaid would not accept any reduction from the full lien amount of $10,652.23. (JPHS p. 6, ¶ 8). There was no evidence that the Agency participated in, approved of, or was consulted concerning Petitioner’s settlement with Kenneth Knowles. In addition to the Medicaid lien, Petitioner had total medical bills of $182,660.42, and has outstanding bills and liens (excluding Respondent’s Medicaid lien) totaling $38,899.51. Accordingly, Petitioner’s total outstanding past medical expenses, including the Agency’s Medicaid lien is $49,551.74. (JPHS p. 6, ¶ 7). Both parties stipulated that the application of the formula at section 409.910(11)(f) to Petitioner’s $65,000.00 settlement requires payment to the Agency in the amount of $10,652.23 in satisfaction of its Medicaid lien. (JPHS p. 5, ¶ 5). There was no evidence presented to prove or suggest that the Agency provided a lesser amount of medical assistance than the $10,652.23 it asserted it had expended. Further, there was no evidence presented to prove what portion of the $65,000.00 settlement was allocated by Petitioner and Kenneth Knowles to her past medical expenses.5/ The affidavit of Attorney Eric Morales, proffered by Petitioner, opined that the "value" of Petitioner’s claim was between $550,000.00 and $750,000.00. (Pet. Ex. 24). These figures supposedly represent the total sum of Petitioner’s range of damages. Morales was of the opinion that the settlement reached by Petitioner represented five percent, on the high end, and 3.6 percent, on the low end, of the actual value of her claim.6/ The undersigned finds and concludes that the affidavit is an out-of-court statement used to prove the truth of the matters asserted in it. It does not supplement or explain other admissible evidence, and Petitioner has advanced no case authority or exception to the hearsay rule which would permit its use or consideration by the undersigned. Morales’s affidavit is classic hearsay. See Fortune v. Fortune, 61 So. 3d 441 (Fla. 2d DCA 2011); and B.C.S., S.R.L. v. Wise, 910 So. 2d 871, 874 (Fla. 5th DCA 2005). As such, it cannot be considered or used by the undersigned to establish or support any findings of fact in this case and is stricken from consideration or use by the undersigned. Petitioner, therefore, did not present any admissible evidence to support a finding of the actual value of her personal injury claim or to support the "pro-rata" or "proportionality" formula she advanced through her counsel’s arguments.7/ To reiterate, there was no evidence presented by Petitioner to prove that (1) a lesser portion of the total recovery should be allocated as reimbursement for past medical expenses than the amount calculated by the Agency, or (2) that Medicaid provided a lesser amount of medical assistance than the $10,652.23 asserted by the Agency.
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration ("AHCA"), for medical expenses paid on behalf of Yisell Cabrera Rodriquez pursuant to section 409.910, Florida Statutes, from settlement proceeds received by Petitioner from third parties.
Findings Of Fact The Parties Petitioner, Julio Cesar Cabrera, is the duly-appointed Personal Representative of the Estate of Yisell Cabrera Rodriquez, his deceased daughter. Respondent is the state agency charged with administering the Florida Medicaid program, pursuant to chapter 409. The Events Giving Rise to this Proceeding On August 30, 2015, Petitioner's 23-year old daughter, Yisell, was severely injured in an automobile accident. She was a passenger in an automobile that was struck by another automobile that failed to yield the right-of-way at an intersection. The automobile in which Yisell was a passenger previously had been in an accident and had been determined a total loss. It subsequently was rebuilt by Unique Body Works in Miami. A sister company, Unique Automotive, sold the vehicle to the driver of the car in which Yisell was a passenger on August 30, 2015. When Unique Body Works rebuilt the automobile, it did not replace the passenger side airbags. When the automobile was struck in the accident, airbags on the passenger side were not available to deploy. As a result, Yisell was severely injured. She was transported to Jackson Memorial Hospital, where she received medical treatment in intensive care. Tragically, on August 31, 2015, Yisell died from the injuries she sustained in the accident. Petitioner instituted a wrongful death action against the at-fault driver ("Carlos Espinoza") and the owner of the automobile ("Ana Ramirez") that struck the automobile in which Yisell was a passenger, Unique Body Works, and Unique Automotive, to recover damages to Yisell's parents and to her estate. Espinoza/Ramirez were insured by Infinity Auto Insurance Company under a policy having a bodily injury limit of $10,000. Unique Body Works was insured by Grenada Insurance Company under a policy having a liability limit of $100,000. Unique Automotive was insured by Western Heritage Insurance Company under a policy having a liability limit of $30,000. All of the insurers tendered their respective policy limits for a total of $140,000. On July 14, 2017, Petitioner, on behalf of the Estate of Yisell Cabrera Rodriquez, entered into settlement agreements with Espinoza/Ramirez, Unique Body Works, and Unique Automotive, for a total of $140,000, which constitutes the total amount of the third-party benefits received.4/ Yisell's medical care related to her injury was paid by Medicaid.5/ The medical expenses paid by Medicaid totaled $86,491.86. Pursuant to section 409.910(6)(c)1., AHCA has a Medicaid lien for that amount. Petitioner's Challenge to the Repayment Amount Section 409.910(11)(f) establishes a formula for distributing the benefits that are recovered by a recipient or his or her legal representative in a tort action against a third party that results in a judgment, settlement, or award from that third party. Applying this formula to the $140,000 that Petitioner received in third-party benefits results in a lien repayment amount of $51,838.61.6/ In this proceeding, AHCA asserts that it is owed this amount. As noted above, Petitioner disputes that $51,838.61 is the amount of recovered medical expenses payable to Respondent, and instead asserts that $4,039.17 in medical expenses are payable to Respondent. In support of his position, Petitioner presented the testimony of Mrs. Maria Rodriquez, Yisell's mother. She testified, persuasively, that theirs was a very close-knit family who did everything together, and that the loss of Yisell has destroyed their family life. She also testified that as a result of the emotional trauma of losing Yisell, her health has suffered, and she has difficulty sleeping and has gastric reflux for which she is being treated. Petitioner also testified, persuasively, that the loss of Yisell changed his life and the lives of his family members. As he described it, "[her loss] has changed our life. It's all the sadness. It's all the pain, everything. Everything's changed. . . . We were happy. We were so happy. We were so close." Petitioner also presented the expert testimony of Oscar Ruiz7/ regarding the valuation of Petitioner's wrongful death claim. Mr. Ruiz testified that in his opinion, $3 million constituted a very conservative valuation of the damages suffered by Yisell's parents in this case. He based this opinion on having interviewed Yisell's parents regarding the impact of her loss on their family, and on his knowledge of jury verdicts and settlements in recent Florida cases involving awards of damages to parents for the loss of their children in automobile accidents or due to medical malpractice. He emphasized that his valuation was far more conservative than many comparable cases that yielded substantially higher verdicts or settlements. Petitioner asserts that Respondent is only entitled to recover $4,039.17 in medical expenses on the basis of the calculation method used in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006). Specifically, Petitioner proposes to apply the same ratio that the settlement of $140,000 bore to the total monetary value of all damages ($3 million, according to Petitioner's expert) to determine the amount Respondent is owed for medical expenses. Petitioner contends that although Ahlborn did not establish a uniform calculation method applicable in all cases, it nonetheless has been accepted and applied by ALJs in other Medicaid third-party recovery cases to determine the amount of reimbursable medical expenses under section 409.910(17)(b), without challenge from AHCA regarding the accuracy of that method. Respondent did not present any evidence regarding the value of Petitioner's claim or propose a differing valuation of the damages. As more fully discussed below, Respondent contends that the opportunity to rebut the medical expense allocation provided under section 409.910(17)(b) is not available in cases such as this, where the Medicaid recipient dies before third- party benefits are recovered through settlement or other means.
The Issue This matter concerns the amount of money to be reimbursed to the Agency for Health Care Administration for medical expenses paid on behalf of Scott R. Brown, a Medicaid recipient, following a settlement recovered from a third party.
Findings Of Fact This proceeding determines the amount the Agency should be paid to satisfy a Medicaid lien following Petitioner’s recovery of a $300,000.00 settlement from a third party. The Agency asserts that it is entitled to recover the full amount of its $112,500.00 lien. The incident that gave rise to this matter occurred on December 22, 2010. On that day, Petitioner, a Florida resident, was visiting relatives in Talladega County, Alabama. Petitioner was shot while sitting in the backseat of a car. The bullet struck Petitioner in his abdomen. Immediately following the incident, Petitioner was taken to UAB Hospital in Birmingham, Alabama. Petitioner received medical care and treatment from December 22, 2010, through January 27, 2011, which included surgical repair of his abdominal injuries. Following his release from UAB Hospital, Petitioner was admitted to Spain Rehabilitation on January 28, 2011. There, Petitioner was diagnosed with a T-10 ASIA-A spinal cord injury, which caused paralysis from the waist down, as well as: a T-12 vertebral fracture; L1 - 2 vertebral fracture; small bowel injury; pancreatic head laceration; and duodenal laceration. Petitioner was also noted to be incontinent and required assistance for all transfers and bed mobility. In short, the gunshot rendered Petitioner a paraplegic. He will continue to require medical treatment for the rest of his life. In June 2011, Petitioner brought a negligence lawsuit in Alabama against the two gunmen. Petitioner was represented by Michael J. Crow, Esquire. Mr. Crow litigated Petitioner’s case over the course of two years. In 2013, Mr. Crow was able to resolve the lawsuit for $300,000, which was the full amount of the gunmen’s homeowner’s insurance. At the final hearing, Mr. Crow testified that the homeowner’s insurance policy was the only available coverage or recoverable asset he identified that could be used to compensate Petitioner for his injuries. Consequently, Mr. Crow believed that it was in Petitioner’s best interests to settle the lawsuit for the policy limits. A portion of Petitioner’s medical care was paid for by the Medicaid programs in Alabama and Florida in the total amount of $262,536.95.2/ Following Petitioner’s settlement, the Alabama Medicaid Agency asserted a lien of $139,169.94 against Petitioner’s recovery. On November 21, 2013, Mr. Crow was able to settle the Alabama Medicaid lien for $6,000.00. This amount represents approximately 4.31 percent of the total Alabama Medicaid lien. Mr. Crow testified that he thought the settlement payment should have been lower based on the full value he placed on Petitioner’s damages (discussed below) versus the actual amount Petitioner recovered. However, he believed that it was in Petitioner’s best interests to settle the Alabama Medicaid lien to avert protracted litigation. The Agency, through the Florida Medicaid program, paid a total of $123,366.95 for Petitioner’s medical treatment from the gunshot injury. All of the expenditures that Florida Medicaid spent on Petitioner’s behalf are attributed to past medical expenses. No portion of the Agency’s Medicaid lien represents future medical expenses. Under section 409.910, the Agency is to be repaid for its Medicaid expenditures out of any recovery from liable third parties. Accordingly, when the Agency was notified of the settlement of Petitioner’s lawsuit, it asserted a Medicaid lien against the amount Petitioner recovered. The Agency claims that, pursuant to the formula set forth in section 409.910(11)(f), it should collect $112,500.00 to satisfy the medical costs it paid on Petitioner’s behalf. (As discussed below, the formula in section 409.910(11)(f) allows the Agency to collect $112,500.00 to satisfy its Medicaid lien.) The Agency maintains that it should receive the full amount of its lien regardless of the fact that Petitioner settled for less than what Petitioner believes is the full value of his damages. Petitioner, on the other hand, asserts that, pursuant to section 409.910(17)(b), the Agency should be reimbursed a lesser portion of the settlement than the amount it calculated using the section 409.910(11)(f) formula.3/ Petitioner specifically argues that the Agency’s Medicaid lien should be reduced proportionately, taking into account the full value of Petitioner’s damages. Otherwise, the application of the default statutory formula would permit the Agency to collect more than that portion of the settlement that fairly represents Petitioner’s compensation for past medical expenses. Petitioner insists that reimbursement of the full lien amount violates the federal Medicaid law’s anti-lien provision (42 U.S.C. § 1396p(a)(1)) and Florida common law. Petitioner requests that the Agency’s allocation from Petitioner’s recovery be reduced to $1,389.00. To establish the value of his damages, Petitioner testified regarding the extent of, and the impact on his life from, the injuries he suffered from the gunshot wound. Petitioner relayed that he has received 18 surgeries on his stomach and intestines. Petitioner further described his future medical expenditures. Petitioner anticipates receiving a hernia operation. Petitioner also requires medication and medical supplies to address his pain and infections. In addition, Petitioner desires a handicap-equipped van that he can use for transportation to his medical visits. Petitioner would also like to install “trapeze” bars in his home to help him exercise. Mr. Crow also testified regarding the full value of Petitioner’s injuries. Mr. Crow has practiced law for 32 years and is a partner with the law firm of Beasley Allen in Montgomery, Alabama. In his practice, Mr. Crow handles serious personal injury and death cases involving car and truck litigation, premise liability cases, and brain injury cases. Mr. Crow has been involved in 15 to 25 lawsuits involving paralyzed clients. As part of his personal injury practice, Mr. Crow regularly evaluates damages similar to those Petitioner suffered. Mr. Crow asserted that the $300,000 settlement was far less than the true value of the injuries Petitioner suffered from this incident. Mr. Crow opined that the full value of Petitioner’s damages equals $26,639,170.00. Mr. Crow explained that this figure consists of $6.5 million present value for Petitioner’s future medical expenses, $5 million for pain and suffering, $10 million for mental anguish and loss of quality of life, $139,170 for the Alabama Medicaid lien, and $5 million in punitive damages. In deriving the value of Petitioner’s injuries, Mr. Crow considered that Petitioner is a younger individual suffering from paraplegia. Mr. Crow explained that Petitioner can live in his community with appropriate nursing support. However, he will require pain management on a monthly basis. His current medications include Baclofen, Colace, Cymbalta, Lopressor, Neurontin, Oxycodone, Senokot, and Glycerine suppositories. Petitioner will also need attendant care to help administer his medications, as well as with bathing, cooking, cleaning, dressing, grooming, and personal hygiene. In addition, Petitioner will require follow-up treatment involving physiatry, physical therapy, urology, and a wheelchair clinic. Furthermore, although Petitioner does not have sensory awareness from his waist down, he continues to experience severe pain in his back and legs. Mr. Crow represented that Petitioner is able to propel himself in a wheelchair, but he can only travel short distances due to fatigue and pain. Petitioner does not have access to a power wheelchair. Regarding transportation, Petitioner will need assistance to drive a van with a wheelchair lift. Finally, Petitioner offered the testimony of David A. Paul, Esquire. Mr. Paul has practiced law in Florida for 22 years as a plaintiff personal injury lawyer and is board- certified in Civil Trial Law by the Florida Bar. Mr. Paul handles catastrophic and serious personal injury cases involving birth injuries, medical malpractice, trucking accidents, and wrongful death. As part of his practice, Mr. Paul regularly evaluates catastrophic injuries. Mr. Paul testified that he has handled many cases with similar injuries to Petitioner. Mr. Paul was accepted as an expert regarding the value of personal injury damages and resolving liens in personal injury cases. At the final hearing, Mr. Paul supported Mr. Crow’s valuation of Petitioner’s injuries. Mr. Paul opined that a “fair full value” of Petitioner’s damages equals in excess of $26 million. In formulating his injury valuation, Mr. Paul considered Petitioner’s past medical expenses, anticipated future medical expenses, the cost of attendant care with daily living activities, past and future lost wages, pain and suffering, as well as mental anguish and loss of quality of life. Regarding the Medicaid liens, Mr. Paul relayed that the norm when resolving liens in Florida is to compare the total value of the injured party’s injuries to the amount of the actual recovery. The lien is then reduced proportionally by this ratio. Mr. Paul commented that he typically resolves Medicaid liens in workers compensation cases using this “equitable formula.” Based on the testimony from Mr. Crow and Mr. Paul that the $300,000 settlement did not fully compensate Petitioner for his damages, Petitioner argues that a lesser portion of the settlement should be allocated to reimburse Florida Medicaid, instead of the full amount of the lien. Petitioner proposes that a ratio should be applied based on the ultimate value of Petitioner’s damages ($26,639,170.00) compared to the amount that Petitioner actually recovered ($300,000). Using these numbers, Petitioner’s settlement represents approximately a 1.126 percent recovery of the full value of Petitioner’s damages. In like manner, the Florida Medicaid lien should be reduced to 1.126 percent or approximately $1,389.00 ($123,366.95 times .01126). Therefore, Petitioner asserts that $1,389.00 is the portion of his third-party settlement that represents the equitable, fair, and reasonable amount the Florida Medicaid program should recoup for its payments for Petitioner’s medical care. The Agency was not a party to the Alabama wrongful injury lawsuit or Petitioner’s settlement. Petitioner was aware of both the Alabama and Florida Medicaid liens and past medical expense damages at the time he settled the lawsuit. No portion of the $300,000 settlement represents reimbursement for future medical expenses. The undersigned finds that Petitioner met his burden of proving, by a preponderance of the evidence, that the full value of his damages from this incident equals $21,639,170.00.4/ Further, based on the evidence in the record, Petitioner proved that a lesser portion of Petitioner’s settlement should be allocated as reimbursement for medical expenses than the amount the Agency calculated pursuant to the formula set forth in section 409.910(11)(f). Finally, the undersigned finds that the evidence establishes that the Agency should be reimbursed in the amount of $5,317.95 from Petitioner’s recovery of $300,000 from a third party to satisfy the Florida Medicaid lien.
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration (“AHCA”), for medical expenses paid on behalf of Ashley Nunez pursuant to section 409.910, Florida Statutes (2016),1/ from settlement proceeds received by Petitioners from third parties.
Findings Of Fact Facts Pertaining to the Underlying Personal Injury Litigation and the Medicaid Lien On February 13, 2010, Ashley Nunez (“Ashley”), who was three years old at the time, presented to a hospital emergency room with a fever. A chest X-ray indicated that Ashley had left lobe pneumonia. The hospital ordered no blood work or blood cultures and did not investigate the cause of Ashley’s pneumonia. The hospital discharged Ashley with a prescription for Azithromycin. By February 14, 2010, Ashley’s fever was 102.9 degrees, and Ashley’s mother took her to a pediatrician. Rather than attempting to discover the cause of the fever, the pediatrician instructed Ashley’s mother that the prescription needed time to work and instructed her to bring Ashley back if the fever persisted. On February 16, 2010, Ashley’s aunt returned her to the pediatrician because Ashley’s fever was persisting and she had developed abdominal pain. Due to a concern that Ashley was suffering from appendicitis, the pediatrician referred her to an emergency room. Later that day, Ashley’s mother returned her to the emergency room that had treated Ashley on February 13, 2010. A second chest x-ray revealed that Ashley’s pneumonia had gotten much worse, and the hospital admitted her. Ashley’s respiratory condition continued to deteriorate, and blood cultures confirmed that she had streptococcus pneumonia. Two days after her admission, the hospital decided to transfer Ashley to a hospital that could provide a higher level of care. On February 18, 2010, an ambulance transferred Ashley to a second hospital. Even though Ashley’s respiratory condition continued to deteriorate, the paramedics and hospital transport team did not intubate her. Upon her arrival at the second hospital, Ashley had suffered a cardiopulmonary arrest and had to be resuscitated with CPR and medication. The lack of oxygen to Ashley’s brain and other organs resulted in catastrophic harm leading Ashley to be intubated, placed on a ventilator, fed through a gastric feeding tube, and placed on dialysis. The second hospital discharged Ashley two and a half months later. While she no longer required a ventilator or dialysis, the hypoxic brain injury and cardiopulmonary arrest left Ashley in a severely compromised medical condition. Ashley was unable to perform any activities of daily living and was unable to stand, speak, walk, eat, or see. Following her discharge from the second hospital, Ashley required continuous care. She was under a nurse’s care for 12 hours a day, and Ashley’s mother (Anna Patricia Delgado) cared for her during the remaining 12 hours each day. On February 23, 2011, Ashley died due to complications resulting from the hypoxic brain injury. Ashley was survived by her parents, Ms. Delgado and John Nunez. Medicaid (through AHCA) paid $357,407.05 for the medical care related to Ashley’s injury. Ashley’s parents paid $5,805.00 for her funeral. As the Personal Representative of Ashley’s Estate, Ms. Delgado brought a wrongful death action against the first emergency room doctor who treated Ashley, the pediatrician, a pediatric critical care intensivist who treated Ashley after her admission to the first hospital, the two hospitals that treated Ashley, and the ambulance company that transported Ashley to the second hospital. AHCA received notice of the wrongful death action and asserted a Medicaid lien against Ashley’s Estate in order to recover the $357,407.05 paid for Ashley’s past medical expenses. See § 409.910(6)(b), Fla. Stat. (providing that “[b]y applying for or accepting medical assistance, an applicant, recipient, or legal representative automatically assigns to [AHCA] any right, title, and interest such person has to any third party benefit ”). Ms. Delgado ultimately settled the wrongful death action through a series of confidential settlements totaling $2,250,000. No portion of that settlement represents reimbursements for future medical expenses. AHCA has not moved to set aside, void, or otherwise dispute those settlements. Section 409.910(11)(f) sets forth a formula for calculating the amount that AHCA shall recover in the event that a Medicaid recipient or his or her personal representative initiates a tort action against a third party that results in a judgment, award, or settlement from a third party. Applying the formula in section 409.910(11)(f) to the $2,250,000 settlement, results in AHCA being owed $791,814.84 in order to satisfy its lien.2/ Because Ashley’s medical expenses of $357,407.05 were less than the amount produced by the section 409.910(11)(f) formula, AHCA is seeking to recover $357,407.05 in satisfaction of its Medicaid lien. See § 409.910(11)(f)4., Fla. Stat. (providing that “[n]otwithstanding any provision in this section to the contrary, [AHCA] shall be entitled to all medical coverage benefits up to the total amount of medical assistance provided by Medicaid.”). Valuation of the Personal Injury Claim Tomas Gamba represented Petitioners during their wrongful death action. Mr. Gamba has practiced law since 1976 and is a partner with Gamba, Lombana and Herrera-Mezzanine, P.A., in Coral Gables, Florida. Mr. Gamba has been Board Certified in Civil Trial Law by the Florida Bar since 1986. Since the mid-1990s, 90 percent of Mr. Gamba’s practice has been devoted to medical malpractice. Over the course of his career, Mr. Gamba has handled 60 to 70 jury trials as first chair, including catastrophic injury cases involving children. In 2015, the Florida Chapter of the American Board of Trial Advocates named Mr. Gamba its Trial Lawyer of the Year. Mr. Gamba is a member of several professional organizations, such as the American Board of Trial Advocates, the American Association for Justice, the Florida Board of Trial Advocates, the Florida Justice Association, and the Miami-Dade County Justice Association. Mr. Gamba was accepted in this proceeding as an expert regarding the valuation of damages suffered by injured parties. Mr. Gamba testified that Petitioners elected against proceeding to a jury trial (in part) because of the family’s need for closure and the stress associated with a trial that could last up to three weeks. Mr. Gamba also noted that the two hospitals that treated Ashley had sovereign immunity, and (at the time pertinent to the instant case) their damages were capped at $200,000 each. In order to collect any damages above the statutory cap, Petitioners would have had to file a claims bill with the Florida Legislature, and Mr. Gamba testified that “the legislature would be very difficult.” As for the three treating physicians who were defendants in the suit, Mr. Gamba testified that Petitioners achieved a favorable settlement by agreeing to accept $2 million when the physicians’ combined insurance coverage was only $3 million. The decision to settle was also influenced by the fact that Ashley had a pre-existing condition known as hemolytic uremic syndrome, a blood disorder. During discovery, Mr. Gamba learned that the defense was prepared to present expert testimony that the aforementioned condition made it impossible for the defendants to save Ashley. Finally, Mr. Gamba testified that 75 percent of medical malpractice cases heard by juries result in defense verdicts. As for whether the $2,250,000 settlement fully compensated Ashley’s estate and her parents for the full value of their damages, Mr. Gamba was adamant that the aforementioned sum was “a small percentage of what we call the full measure of damages in this particular case.” Mr. Gamba opined that $8,857,407.05 was the total value of the damages that Ashley’s parents and her Estate could have reasonably expected to recover if the wrongful death action had proceeded to a jury trial. Mr. Gamba explained that Florida’s Wrongful Death Act enabled Ashley’s parents to recover for the death of their child and for the pain and suffering they incurred from the date of Ashley’s injury. According to Mr. Gamba, $4,250,000 represented a “conservative” estimate of each parent’s individual claim, and the sum of their claims would be $8,500,000. Mr. Gamba further explained that Ashley’s Estate’s claim would consist of the $357,407.05 in medical expenses paid by Medicaid, resulting in an estimate for total damages of $8,857,407.05. Mr. Gamba’s opinion regarding the value of Petitioners’ damages was based on “roundtable” discussions with members of his firm and discussions with several attorneys outside his firm who practice in the personal injury field. Mr. Gamba’s opinion was also based on 10 reported cases contained in Petitioners’ Exhibit 9. According to Mr. Gamba, each of those reported cases involve fact patterns similar to that of the instant case. Therefore, Gamba testified that the jury verdicts in those cases are instructive for formulating an expectation as to what a jury would have awarded if Ashley’s case had proceeded to trial. In sum, Mr. Gamba testified that the $2,250,000 settlement represents a 25.4 percent recovery of the $8,857.407.05 of damages that Ashley’s parents and Ashley’s Estate actually incurred. Therefore, only 25.4 percent (i.e, $90,781.30) of the $357,407.05 in Medicaid payments for Ashley’s care was recovered. Mr. Gamba opined that allocating $90,781.39 of the total settlement to compensate Medicaid for past medical expenses would be reasonable and rational. In doing so, he stated that, “And I think both – if the parents are not getting their full measure of damages, I don’t think the health care provider, in this case Medicaid, that made the payment should get, you know, every cent that they paid out, when mother and father are getting but a small percentage of the value of their claim.” Petitioners also presented the testimony of Herman J. Russomanno. Mr. Russomanno has practiced law since 1976 and is a senior partner with the Miami law firm of Russomanno and Borrello, P.A. Mr. Russomanno has been Board Certified in Civil Trial Law by the Florida Bar since 1986, and he has served as the Chairman of the Florida Bar’s Civil Trial Certification Committee. Mr. Russomanno is also certified in Civil Trial Practice by the National Board of Trial Advocates and has taught trial advocacy and ethics for 33 years as an adjunct professor at the St. Thomas University School of Law. Mr. Russomanno is a past president of the Florida Bar and belongs to several professional organizations, such as the Florida Board of Trial Advocates, the American Board of Trial Advocates, the Dade County Bar Association, and the Miami-Dade County Trial Lawyers Association. Since 1980, Mr. Russomanno’s practice has been focused on medical malpractice, and he has represented hundreds of children who suffered catastrophic injuries. Mr. Russomanno was accepted in the instant case as an expert in the evaluation of damages suffered by injured parties. Prior to his testimony at the final hearing, Mr. Russomanno reviewed Ashley’s medical records, the hospital discharge summaries, and the Joint Pre-hearing Stipulation filed in this proceeding. He also discussed Ashley’s case with Mr. Gamba and reviewed Mr. Gamba’s file from the wrongful death action. Mr. Russomanno also viewed videos of Ashley taken before and after her injury so he could gain an understanding of the severity of Ashley’s injury and the suffering experienced by her parents. Mr. Russomanno credibly testified that the damages incurred by Ashley’s parents were between $4,250,000 and $7,500,000 for each parent. Mr. Russomanno echoed Mr. Gamba’s testimony by stating that the $2,250,000 settlement did not fully compensate Ashley’s parents and her Estate for their damages. AHCA presented the testimony of James H.K. Bruner. Mr. Bruner has practiced law since 1983 and is licensed to practice law in Florida, New York, Maine, and Massachusetts. Mr. Bruner is a member of professional organizations such as the American Health Lawyers Association and the Trial Lawyers Sections of the Florida Bar. Between 2003 and 2005, Mr. Bruner served as the Department of Children and Families’ risk attorney. That position required him to evaluate personal injury actions filed against the Department and assess the Department’s exposure to liability. Based on his experience in evaluating approximately 200 cases for the Department, Mr. Bruner authored the Department’s manual on risk management and provided training to Department employees on risk management issues. Mr. Bruner has served as the Director of AHCA’s Bureau of Strategy and Compliance. In that position, he dealt specifically with third-party liability collections and Medicaid liens. Beginning in 2008, Mr. Bruner worked for ACS (now known as Xerox Recovery Services) and was engaged in attempting to recover Medicaid liens from personal injury settlements. Over the last several years, Mr. Bruner has spoken at seminars about Medicaid lien resolution and authored publications on that topic. Since April of 2013, Mr. Bruner has been in private legal practice as a solo practitioner. He describes himself as a “jack of all trades” who engages in a “general practice.” Over the last 20 years, Mr. Bruner has not handled a jury trial involving personal injury; and, over the last four years, he has not negotiated a personal injury settlement. The undersigned accepted Mr. Bruner as an expert witness for evaluating the cases contained in Petitioners’ Exhibit 9 and pointing out distinctions between those cases and the instant case. Mr. Bruner did not offer testimony regarding the specific value of the damages suffered by Petitioners. Findings Regarding the Testimony Presented at the Final Hearing Regardless of whether the reported cases in Petitioners’ Exhibit 9 are analogous to or distinguishable from the instant case, the undersigned finds that the testimony from Mr. Gamba and Mr. Russomanno was compelling and persuasive. While attaching a value to the damages that a plaintiff could reasonably expect to receive from a jury is not an exact science, Mr. Gamba and Russomanno’s substantial credentials and their decades of experience with litigating personal injury lawsuits make them very compelling witnesses regarding the valuation of damages suffered by injured parties such as Petitioners. Accordingly, the undersigned finds that Petitioners proved by clear and convincing evidence that $90,781.39 constitutes a fair and reasonable recovery for past medical expenses actually paid by Medicaid. However, and as discussed below, AHCA (as a matter of law) is entitled to recover $357,407.05 in satisfaction of its Medicaid lien.3/
The Issue Whether a valid Medicaid lien exists, and, if so, what is the amount payable to Respondent pursuant to section 409.910(17), Florida Statutes, in satisfaction of the lien from a settlement received by Petitioners from a third-party.1/
Findings Of Fact Ethan Hunt (Ethan), was born on January 7, 2003, and died on May 31, 2006, from complications arising from his birth- related catastrophic neurological injury and severe disabilities. Petitioners, Elsa and Eric Hunt (the Hunts), individually, as parents of Ethan, and as the Co-Personal Representatives of the Estate of Ethan Hunt (Estate), brought a wrongful death lawsuit against the hospital where Ethan was born, a physician, and an Advanced Registered Nurse Practitioner (ARNP), to recover their individual damages as the surviving parents of Ethan, as well as the individual claim for damages of the Estate. In accordance with the limitation on damages recoverable in wrongful death actions contained in section 768.21, Florida Statutes, the Hunts' wrongful death lawsuit specifically sought the individual damages of each parent for their "mental pain and suffering and loss of companionship" of their deceased son. Further, the wrongful death action sought, on behalf of the Estate, recovery of "medical and funeral expenses." Ethan was a Medicaid recipient and a portion of his medical care was paid for by Medicaid. Respondent, Agency for Health Care Administration (AHCA), through the Medicaid program, paid $315,632.17 in benefits on behalf of Ethan for medical benefits related to the alleged negligent medical care received by Ethan. Ethan first received medical treatments for which Medicaid was obligated to make payments on June 11, 2003, and AHCA, through the Medicaid program, made its last payment for Ethan's medical care on May 29, 2006. As a condition of Ethan's eligibility for Medicaid, Ethan's right to recover from liable third-parties medical expenses paid by Medicaid was assigned to AHCA. See 42 U.S.C. § 1396a(a)(25)(H) and § 409.910(6)(b), Fla. Stat. Pursuant to section 409.910(6)(c), Florida Statutes, AHCA's Medicaid lien attached and was perfected on June 11, 2003, when Ethan first received medical care for which Medicaid was obligated to make payments. On May 25, 2005, AHCA recorded in the Miami-Dade County public record its Claim of Lien and Notice of Assignment and Other Statutory Rights (Lien), Book 23409, pages 2856-2858. By letter dated May 28, 2008, to an attorney representing the Hunts and the Estate, from AHCA’s contracted vendor, Health Management Systems (HMS), AHCA indicated that the Medicaid lien was in the amount of $315,632.17. On July 11, 2008, the Hunts, on behalf of themselves and Ethan's Estate, submitted to all defendants in the wrongful death action, Plaintiffs’ Proposal for Settlement to All Defendants (Proposal). The Proposal offered a settlement of $7,250,000.00 to be allocated as follows: Elsa Hunt $3,300,000.00 45.5% Eric Hunt $3,300,000.00 45.5% Estate of Ethan Hunt $650,000.00 9.0% The Hunts' July 11, 2008, Proposal was rejected, and a mediation of the wrongful death lawsuit was held on May 12, 2009. By letter dated May 4, 2009, to HMS, the attorney representing the Hunts in the wrongful death action notified AHCA's designated vendor of the May 12, 2009, mediation and provided a copy of the notice of mediation. AHCA did not attend or participate in the mediation. A global settlement was reached at the May 12, 2009, mediation for the total amount of $1,800,000.00. As part of the mediated settlement, the parties made an allocation of the settlement proceeds between individual claims of the surviving parents and the individual claim of the Estate. This allocation was memorialized in the Addendum to Mediation Settlement Agreement Allocation of Settlement (Addendum). Each parent was allocated a total amount of $819,000.00 "in satisfaction of their individual claims for mental pain and suffering and loss of companionship." The Estate was allocated a total of $162,000.00 "in satisfaction of its claims for medical expenses and funeral expenses." The parties allocated these amounts in accordance with the percentages as presented in the prior Proposal. By letter dated May 20, 2009, AHCA received notice that the case settled at the May 12, 2009, mediation and of the intent to issue a dismissal of the defendants in the case. On June 9, 2009, the court entered a Final Judgment of Dismissal with Prejudice. AHCA took no action to intervene in the wrongful death action or to seek relief from the settlement reached by the parties. Upon receipt of the settlement proceeds, the amount of $315,632.17 was placed into a trust account for the benefit of AHCA pending an administrative determination of AHCA's rights, and this constitutes "final agency action and notice thereof" for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). Pursuant to 42 U.S.C. section 1396a(a)(25)(A), (B), and (H), section 1396k(a), and section 1396p(a), AHCA may only assert a lien against, and seek recovery from, the portion of a Medicaid recipient’s settlement representing the Medicaid recipient’s compensation for medical expenses paid by Medicaid. The Hunts requested that AHCA calculate the amount owed in satisfaction of the lien pursuant to the statutory formula set forth in section 409.910(11)(f).2/ The Hunts requested that this calculation be based on the Estate’s recovery of $162,000.00, minus the Estate's share of attorneys' fees and the Estate’s $15,559.01 share of the litigation costs (which represents the Estate’s 9% proportionate share of the gross $172,877.87 in litigation cost). AHCA refused to calculate the amount payable to AHCA in accordance with section 409.910(11)(f), Florida Statutes, and continues to seek payment of its full $315,632.17 Lien from the gross settlement award, including those funds allocated to the parents for their individual claims. Pursuant to section 409.910(6)(c)9., a Medicaid lien exists for seven years after it is recorded, and the lien may be extended for one additional period of seven years by AHCA recording a Claim of Lien within the 90-day period preceding the expiration of the original lien. In the instant case, AHCA recorded its Lien on May 25, 2005. By operation of law, this Lien ceased to exist on May 25, 2012 (seven years after it was recorded on May 25, 2005). AHCA did not extend the existence of the Lien by again recording it within the 90-day time period preceding its expiration on May 25, 2012. Accordingly, AHCA’s Lien no longer exists. In addition to the Lien, AHCA has subrogation and assignment rights to collect third-party benefits for the amount of medical assistance provided by Medicaid. § 409.910(6)(a) and (b), Fla. Stat. Actions to enforce the rights of AHCA must be commenced within five years after the date a cause of action accrues, with the period running from the later of the date of discovery by AHCA of the case filed by recipient or his or her legal representative, or of discovery of any judgment, award, or settlement contemplated in the section, or of discovery of facts giving rise to a cause of action. § 409.910(11)(h), Fla. Stat. By May 20, 2009, at the latest, AHCA was aware of the settlement between the Hunts and the Estate, with Ethan's physician, ARNP, and the hospital at which he was born. As of the date of the final hearing, May 13, 2014, AHCA had not exercised any subrogation or assignment rights. Accordingly, AHCA's ability to pursue subrogation and assignment rights has expired. Based on the undersigned's finding that no enforceable Lien exists, and that AHCA's subrogation and assignment rights are extinguished, as discussed more fully in the Conclusions of Law, there is no need to address any of the other factual contentions of the parties.3/
