13-002095 Tayna Alexander vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Monday, November 18, 2013.

Summary: Petitioner demonstrated her entitlement, under State Employees' PPO Group Health Insurance Plan, to reimbursement for her stay at Hackerman-Patz Pavilion in conjunction with her bone marrow transplant treatment at Johns Hopkins Hospital in Baltimore.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAYNA ALEXANDER,

Petitioner,

vs. Case No. 13 - 2095

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

August 16, 2013, by video teleconference at sites in Tallahassee

and St. Petersburg, Florida, before Lawrence P. Stevenson , a duly

designated Administrative Law Judge of the Division of

Ad ministrative Hearings.

APPEARANCES

For Petitioner: Tayna Carrie Alexander, pro se

Apartment 732

2400 Feather Sound Drive

Clearwater, Florida 33762

For Respondent: Sonja P. Ma thews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISS UE

The issue is whether Respondent properly denied payment for

PetitionerÓs lodging at the Hackerman - Patz Pavilion in

Baltimore, Maryland , from December 30, 2011 , through January 31,

2012, pursuant to the State EmployeesÓ PPO Group Health

Insurance Plan.

PRELIMINARY STATEMENT

By letter dated December 12, 2012 , Respondent, Department

of Management Services, Division of State Group Insurance

(ÐDSGIÑ), notified Petitioner, Tayna Alexander, that it intended

to deny her Level II Appeal, by which Petitioner cha llenged the

decision of Blue Cross & Blue Shield of Florida (ÐFlorida

BlueÑ), to pay $2,912.00 for her lodging after her

hospitalization at Johns Hopkins Hospital in November 2011.

Petitioner submitted to D SGI a request for an informal hearing 1 /

on the ba sis that the lodging in question was not excluded as a

Ðmotel/hotel accommodationÑ under the Florida Blue plan. The

informal hearing was convened on April 26, 2013, after which the

presiding officer recommended that the matter be sent to the

Division of A dministrative Hearings (ÐDOAHÑ) for the conduct of

a formal hearing. DSGI referred the matter to DOAH on June 12,

2013.

The final hearing was scheduled for August 16, 2013, on

which date it was convened and completed. At the final hearing,

Petitioner tes tified on her own behalf and presented the

testimony of her father, Michael L. Alexander. PetitionerÓs

Exhibits 1 through 6 were admitted into evidence. Respondent

presented the testimony of Kathy Flippo, a registered nurse and

RespondentÓs Legal Nurse S pecialist, and of Jessica Bonin,

Florida BlueÓs Critical Inquiry Analyst. RespondentÓs Exhibits

1 through 4, 6, 7, 10 and 11 were admitted into evidence.

No transcript of the hearing was submitted. On August 27,

2013, Respondent filed an unopposed motion to extend the time

for filing proposed recommended orders to September 4, 2013,

which was granted by an order entered on August 27, 2013.

Petitioner filed her P roposed R ecommended O rder on August 30,

2013. Respondent filed its P roposed R ecommended O rder on

September 4, 2013.

Unless otherwise noted, all statutory references are to

Florida Statutes (201 3 ).

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioner

was an attorney in the Pinellas County Public DefenderÓs office

and was enroll ed as a member of the State EmployeesÓ PPO Plan.

At the time of the hearing, Petitioner was 36 years old.

Petitioner was provided with the State EmployeesÓ PPO Plan Group

Health Insurance Plan Booklet and Benefits Document (the

ÐBenefits DocumentÑ). The version of the Benefits Document

entered into the record in this proceeding bore the statement,

ÐEffective January 1, 2012.Ñ Because Petitioner did not dispute

that this was the applicable edition of the Benefits Document ,

it is assumed to be identical i n all relevant respects to the

version that was in effect during November and December of 2011 .

2. DSGI is the state agency responsible for administration

of the state group insurance program. Pursuant to statute, DSGI

has contracted with Florida Blue to act as its third - party

medical claims administrator for employee health insurance

benefits.

3. In 2004, Petitioner was diagnosed with acquired

aplastic anemia. A variety of treatments were attempted during

the intervening years with some success , but Pe titionerÓs

overall condition continued to decline .

4. By 2011, Petitioner was a candidate for a bone marrow

transplant. Her siblings were tested and found not to be human

leukocyte antigen identical to Petitioner, meaning they were not

candidates for t he transplant and that Petitioner would require

a matched unrelated donor, or MUD, bone marrow transplant. She

went to Johns Hopkins in November 2011 to begin the evaluation

process and receive the transplant. Her attending physician was

Robert A. Brodsk y, the D irector of H ematology at Johns Hopkins.

5. Two weeks prior to her admission to the hospital,

Petitioner came t o Johns Hopkins for testing . She was

accompanied by her mother. Petitioner was provided with housing

options and was given a form title d ÐBone Marrow Transplant

(BMT) Housing and Caregiver Informati onÑ that contained the

following information:

Housing:

The BMT team wants to watch you closely

during your transplant care. Depending on

your type of transplant, you will spend

some , to all o f your time , as an outpatient

in the IPOP [Inpatient/Outpatient] clinic.

Anytime you are an outpatient in the IPOP

clinic, you must stay within 30 - 60 minutes

(including traffic) of The Johns Hopkins

Hospital. If you do not already live

locally, you and y our caregiver must arrange

local housing during this time. Talk with

your BMT Case Manager about when you will

need housing.

Some insurances cover housing/relocation

costs, but many do not. If you need to

arrange local housing, call your insurance

compa ny as soon as possible and inquire

about their housing coverage policy. If

your insurance has a case management option

you may want to request this to help with

housing coverage questions. You can also

talk with your BMT Case Manager and the BMT

Finance Office about your housing coverage.

* * *

The Housing Referral Service has information

on many housing options. Prices for housing

vary depending on location and amenities....

6. Petitioner testified that after reviewing all the

options, she chose the Hackerman - Patz Patient and Family

Pavilion (ÐH - P PavilionÑ) as the best and cheapest option. The

H - P Pavilion is a facility located on the Johns Hopkins campus

within easy walking distance of the hospital and provides short

and long - term housing options for patients and their caregivers.

The H - P PavilionÓs informational materials state that it Ðoffers

gracious, supportive and affordable hospitality in a home - like

atmosphere, a welcoming alternative to hotel living when

traveling to receive specialized me dical treatment.Ñ It is

designed specifically to provide housing for cancer patients and

their caregivers, and offers suites for $60.00 per night and

apartments for $87.00 per night.

7. The H - P Pavilion is not a hotel that offers

accommodations to the general public. In order to stay at the

H - P Pavilion, one must be a Johns Hopkins patient or a patientÓs

caregiver. The patient must be receiving treatment at Johns

Hopkins for a minimum of three consecutive days, or at least

three days a week. The pati ent must have a 24 - hour per day

caregiver who has agreed to stay for the duration of treatment.

Children under 12 are not permitted to stay overnight

8 . In a letter addressed ÐTo Whom It May ConcernÑ and

dated November 9, 2011, Dr. Brodsky wrote as follo ws, in

relevant part:

This is to document that Ms. Tayna Alexander

has specific housing requirements dictated

by the Bone Marrow Transplant Program at the

Sidney Kimmel Comprehensive Cancer Center.

On November 15, 2011, Ms. Alexander will be

admitted to s tart preparatory chemotherapy

for her bone marrow transplant. This is

done on an inpatient basis. From the day

the preparative regimen begins (six days

before the transplant), until approximately

6 - 8 weeks after transplant she will be

inpatient. The hos pital stay may be longer

if complications occur. After discharge

from the hospital , Ms. Alexander is required

to stay specifically within an hour of the

hospital for daily outpatient clinic visits.

She should stay in local housing facilities

approved by the transplant team which

complies with the housekeeping guidelines

established by the Transplant Program.

9 . Petitioner was admitted to Johns Hopkins on

November 15, 2011 , and t he bone marrow transplant was performed

on November 22 . Petitioner remaine d in the hospital until

December 30 , 2011 , her immune system Ðwiped out,Ñ in the words

of Dr. Brodsky. She received immunosuppressive therapy and

daily transfusions of red blood cells and platelets . She

suffered from persistent nausea and incontinence. She had a

renal insufficiency that led her to gain 50 pounds of water

weight. Her physicians repeatedly noted that Ðdue to the nature

of her disease and therapy, she continues to be at high risk for

morbidity and mortality.Ñ

10 . Petitioner testified that she was still so sick on

December 30, 2011 , that she was surprised that the hospital

wanted to release her . She stated that she was taking large

doses of Ativan for nausea . She was disoriented and in a poor

overall mental condition. Her platelet count remained very low.

She continued to experience incontinence and vomiting.

11. PetitionerÓs father, Michael Alexander, undertook the

task of being PetitionerÓs 24 - hour - a - day caregiver during the

outpatient portion of her post - surgical treatment. He took a

skilled caregiver class at Johns Hopkins taught by a registered

nurse. The class taught Mr. Alexander how to maintain a sterile

environment in the living area, how to prepare proper meals for

his daughter, how to monitor her vital signs, and how to clea n

and flush her Hickman line, the central venous catheter used to

administer medications.

12. Mr. Alexander testified that about a week before

PetitionerÓs release, the medical team asked him about going to

the H - P Pavilion. The team believed that gettin g out of the

hospital room would speed PetitionerÓs recovery. Mr. Alexander

stated that the team was ÐpushingÑ the idea. Mr. Alexander told

the team that he and his daughter would have to think about it,

because she was still very sick. Petitioner told her father

that she was willing to try it, though he remained skeptical.

13. Petitioner testified that the hospital gave her the

option of staying in the hospital or going to the H - P Pavilion

or some other nearby accommodation . Both Petitioner and her

fa ther testified that the hospital assured them that she could

return to the hospital if she was not comfortable in the H - P

Pavilion. In a written statement, Mr. Alexander wrote, ÐHad I

known that this would result in an insurance dispute, I would

have sugg ested an easier route to stay in Johns Hopkins

inpatient care and just let the insurance company pay 80 times

the cost.Ñ

14. Neither DSGI nor Florida Blue disputed that

PetitionerÓs insurance would have paid for her continued stay in

the hospital, had she decided that she was not well enough to

cope with outpatient procedures. Billing information submitted

into evidence indicated that a bed in Johns Hopkins was priced

in excess of $1,500.00 per day , before any other expenses were

added on.

15 . On Decembe r 30, 2011, Petitioner was discharged from

Johns Hopkins and moved into an apartment in the H - P Pavilion

with her father. 2 / Petitioner continued daily outpatient

treatments at Johns Hopkins , most days spending several hours

receiving blood transfusions. The H - P Pavilion was attached to

the hospital via a walkway and was across the street from the

IPOP facility. Petitioner and her father walked back and forth

between the pavilion and the IPOP facility every day .

16 . Mr. Alexander cared for his daughter t hroughout their

stay at the Pavilion. He flushed the Hickman line every two

days and checked for infection. He replaced the Hickman line

ports every five days and applied a special bandage for the

Hickman line to PetitionerÓs chest. He maintained a ster ile

environment in the living area. He prepared the specific foods

required for PetitionerÓs restricted diet. He monitored her

vital signs and body functions and reported those to

PetitionerÓs medical team. He dispensed and kept logs of the

many medicat ions that Petitioner took every day. He assisted

Petitioner with all of her activities of daily living, as well

as cleaning up her vomit and urine and washing her clothing and

bedding.

17 . Petitioner and her father stayed in the H - P Pavilion

until Januar y 31, 2012. At that point, they returned to Florida

and Petitioner resumed treatment with her local doctors.

18 . PetitionerÓs stay at the H - P Pavilion was billed

directly to her. The bill itself is on the letterhead of Johns

Hopkins Hospital and lists P etitioner as the Ðpatient.Ñ

19. Petitioner submitted the bill to Florida Blue for

reimbursement. When Florida Blue initially denied her

reimbursement, Petitioner sought a Level I Appeal pursuant to

s ection 12 of the Benefits Document. By letter dated

October 29, 2012, and signed by Kelly Register, a Critical

Inquiry Analyst for Florida Blue, Petitioner was informed that

Florida Blue Ðremains unable to approve additional coverage

and/or payment for the Non - Covered Services: Housing.Ñ The sole

ground ci ted by Florida Blue for this denial was that page 5 - 3

of the Benefits Document excludes Ðperson al comfort, hygiene or

convenience items ,Ñ which expressly include Ðmotel/hotel

accommodations.Ñ 3 /

20. Petitioner then pursued a Level II Appeal to DSGI. In

a letter signed by Division Director Barbara M. Crosier, dated

December 12, 2012, DSGI rejected PetitionerÓs appeal. The

letter stated as follows, in relevant part:

While researching this appeal, we reviewed

all documentation you provided, including

your le tter of appeal, the invoice from The

Hackerman - Patz Patient and Family Pavilion,

and a letter from Dr. Robert Brodsky stating

that you were required to stay within one

hour from the hospital. We also reviewed

the letter of denial BCBSF sent in response

to your prior benefit determination request

for coverage of housing costs.

While we empathize with your situation, the

[Benefits Document] effective January 1,

2007, and as amended by the State EmployeesÓ

PPO Plan Summary of Plan Description

Material Modifi cation, effective January 1,

2009, [ 4 / ] states on page 5 - 3 under

Exclusions:

ÐPersonal Comfort, Hygiene or Convenience

Items and services deemed to be not

medically necessary and not directly related

to your treatment including but not limited

to:

7. tra vel expenses (other than medically

necessary ambulance services);

8. motel/hotel accommodations;Ñ

Page 15 - 4 states:

ÐMedically necessary . . . services required

to identify or treat the illness, injury,

condition, or mental and nervous disorder a

docto r has diagnosed or reasonably suspects.

The service must be:

1. consistent with the symptom, diagnosis,

and treatment of the patientÓs condition;

2. in accordance with standards of good

medical practice;

3. required for reasons other than

convenienc e of the patient or the doctor;

4. approved by the appropriate medical body

or board for the illness or injury in

question; and

5. at the most appropriate level of medical

supply, service, or care that can be safely

provided.

The fact that a service i s prescribed by a

doctor does not necessarily mean that the

service is medically necessary. BCBSF and

DSGI determine whether a service or supply

is medically necessary.Ñ

Based upon careful review of the information

you provided to us, we find that medica l

necessity has not been demonstrated or

documented. You did not meet criteria for

in - patient hospitalization, and housing

during outpatient treatment is not covered

by your PPO Plan.Ñ

21. ÐPersonal comfort, hygiene or convenience items and

servicesÑ is undefined in the Benefits Document except by the

list of examples provided. This provision of the Benefits

Document provides as follows, in full:

Personal comfort, hygiene or convenience

items and services deemed to be not

Medically Necessary and not dir ectly related

to your treatment including, but not limited

to:

1. beauty and barber services;

2. clothing including support hose;

3. radio and television;

4. guest meals and accommodations;

5. telephone charges;

6. take - home supplies;

7. trav el expenses (other than Medically

necessary Ambulance services);

8. motel/hotel accommodations;

9. equipment which is primarily for your

convenience and/or comfort, or the

convenience of your family or caretakers;

modifications to motor vehicles and/or homes

such as wheelchair lifts or ramps; electric

scooters; water therapy devices such as

Jacuzzis, hot tubs, swimming/lap pools or

whirlpools; membership to health clubs,

exercise, physical fitness and/or massage

equipment; hearing aids; air conditioners

and purifiers, furnaces, air filters,

humidifiers; water softeners and/or

purifiers; pillows, mattresses or waterbeds;

escalators, elevators, stair glides;

emergency alert equipment; blood pressure

kits, handrails and grab bars; heat

appliances and dehumi difiers, vacuum

cleaners or any other similar equipment and

devices used for environmental control or to

enhance an environmental setting;

10. heating pads, hot water bottles, or ice

packs; and

11. massages except as described in section

3.

22 . The Benefits Document also provides no definition of

the term Ðmotel/hotel accommodations.Ñ The common dictionary

definition of ÐhotelÑ is Ð an establishment providing

accommodations, meals, and other services for travelers and

tourists. Ñ 5 / The plain meaning of the term ÐhotelÑ includes the

concept of a place providing temporary accommodations that is

open to all travelers, not a limited purpose facility such as

the H - P Pavilion. 6 /

23 . This distinction is recognized in section 509.013,

Florida Statutes, whi ch sets forth the definitions used by the

state in regulating lodging and food service establishments. A

ÐhotelÑ is included in the definition of a Ðtransient public

lodging establishmentÑ under section 509.013(4)(a)1., as Ð any

unit, group of units, dwell ing, building, or group of buildings

within a single complex of buildings which is rented to guests

more than three times in a calendar year for periods of less

than 30 days or one calendar month, whichever is less, or which

is advertised or held out to th e public as a place regularly

rented to guests . Ñ

24 . The H - P Pavilion was not Ðheld out to the publicÑ as a

place offering overnight accommodations but was strictly limited

to Johns HopkinsÓ patients and their families. Section

509.013(4) expressly reco gnizes such a facility as excluded from

the definition of a public lodging establishment and therefore

not subject to regulation by the Division of Hotels and

Restaurants :

(b) The following are excluded from the

definitions in paragraph (a):

* * *

7. A ny nonprofit organization that operates

a facility providing housing only to

patients, patientsÓ families, and patientsÓ

caregivers and not to the general public.

25. T he H - P Pavilion does not meet the ordinary definition

of the term ÐhotelÑ and would n ot be considered a ÐhotelÑ for

purposes of regulation by the state of Florida. The term

ÐhotelÑ is not otherwise defined by the Benefits Document.

Therefore, DSGI cannot rely on the H - P PavilionÓs status as a

ÐhotelÑ in order to deny reimbursement to Pet itioner without

twisting the meaning of the term beyond recognition .

26. Ms. CrosierÓs letter also quotes the Benefits

DocumentÓs definition of Ðmedically necessary,Ñ presumably to

bring PetitionerÓs stay at the H - P Pavilion under the category

of Ðpersona l comfort, hygiene or convenience items and servicesÑ

even if the H - P Pavilion were found not to be a hotel.

Ms. CrosierÓs letter does not offer an explanation as to the

connection between the definition of Ðmedically necessaryÑ and

the H - P Pavilion, as i f it were self - evident that PetitionerÓs

stay at that facility does not meet the terms of the definition.

The connection is not self - evident. PetitionerÓs medical

provider directed her to stay at the H - P Pavilion or a similar

facility , as indicated in an August 6, 2013 , ÐTo Whom It May

ConcernÑ letter from Dr. Brodsky:

Ms. Tayna Alexander was under my care from

November 2011 , until Jan. 31, 2012 , for her

severe aplastic anemia. She underwent a

bone marrow transplant during that time. In

preparation for the transplant, she received

very high doses of chemotherapy that wiped

out her immune system. This made her

extremely susceptible to infections and

bleeding. Since an infection or issue with

bleeding can be fatal if not treated

promptly, she was requir ed to stay in

housing no farther than 1 hour away from the

hospital. As this was medically necessary,

she was approved by the bone marrow

transplant team and me to stay at the

Hackerman - Patz house in Baltimore, Maryland.

She was also required to have a 2 4 - hour

caregiver to provide assistance and to get

her to the hospital for daily visits and to

help with any emergencies that might arise.

I would like to reiterate that both the

housing within an hour of the hospital as

well as having a caregiver are not

suggestions but rather are medically

necessary requirements for patients

undergoing a bone marrow transplant.

27. The Benefits Document states that a doctorÓs

prescription Ðdoes not necessarily mean that the service is

Medically Necessary.Ñ However, whe n DSGI determines that the

physicianÓs estimate of medical necessity is incorrect, it must

do more than merely cite the definition of Ðmedical necessityÑ

in its determination letter.

28. Moreover , the language in the Ðpersonal comfort,

hygiene , or con venience items and servicesÑ provision of the

Benefits Document is in the conjunctive: Ðdeemed to be not

Medically Necessary and not directly related to your treatment.Ñ

Even if DSGI were correct in determining that PetitionerÓs stay

in the H - P Pavilion w as not Ðmedically necessary,Ñ DSGI would

still need to make a determination that the stay was not

directly related to PetitionerÓs treatment. No such

determination was made in Ms. CrosierÓs letter, and the facts

found above lead to the finding that Petiti onerÓs stay at the

H - Pavilion was directly and intrinsically related to her

continuing treatment at Johns Hopkins.

29. P etitionerÓs medical team believed it necessary for

her to stay nearby because PetitionerÓs proximity to the Johns

Hopkins facility d irectly assisted her access to treatment

during a time when she was extremely vulnerable physically and

mentally. PetitionerÓs proximity to the medical facility also

eliminated an unnecessary source of anxiety as to emergencies

that might arise. Petition er was very near death at the time of

her transplant and remained Ð at high risk for morbidity and

mortalityÑ during the month that she spent at the H - P Pavilion.

This was no mere ÐconvenienceÑ but a vital part of PetitionerÓs

recovery.

30. At the final h earing, Jessica Bonin, a critical

analyst for Florida Blue, testified as to a reason for rejection

of PetitionerÓs claim that was not addressed in the rejection

letters of either the Level I or the Level II Appeal . Ms. Bonin

stated that the claim should b e rejected because it was

submitted by Petitioner, not by Johns Hopkins. Section 11 of

the Benefits Document states that PPC Network providers such as

Johns Hopkins Ðwill file the claim for you and you will be

responsible for paying any Co - insurance, dedu ctibles, Co -

payments and non - covered services.Ñ From this, Ms. Bonin

concluded that Johns Hopkins does not consider the H - P Pavilion

as one if its services and that PetitionerÓs claim should be

rejected .

31. Section 11 of the Benefits Document states, ÐW hen you

go to a Network Provider or Non - Network Provider participating

in the Traditional Program, you do not need to file a claim.Ñ

In its Proposed R ecommended O rder, DSGI cited this language as a

ÐbenefitÑ of the PPC Plan, presumably because it place d t he onus

for filing a claim on the network provider rather than the

covered individual. The Benefits Document does not address the

covered individualÓs remedy in those instances when the provider

fails to file the claim on her behalf . In this instance,

Pe titioner chose to file the claim directly with Florida Blue.

The Benefits Document does not forbid the covered individual

from filing a claim within the network . Thus, there is no basis

for rejecting PetitionerÓs claim solely because she filed it .

CONCLU SIONS OF LAW

32 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

33 . Respondent is the agency charged by the legislature

with the duty to oversee t he administration of the State Group

Insurance Program, including the group disability insurance

program.

34. Section 110.123, titled Ð State Group Insurance Plan, Ñ

describes the powers and duties conferred on Respondent as

follows , in relevant part :

(5) DEPARTMENT POWERS AND DUTIES. Ï The

department is responsible for the

administration of the state group insurance

program. The department shall initiate and

supervise the program as established by this

section and shall adopt such rules as are

necessary t o perform its responsibilities.

To implement this program, the department

shall, with prior approval by the

Legislature:

(a) Determine the benefits to be provided

and the contributions to be required for the

state group insurance program. Such

determinations, whether for a contracted

plan or a self - insurance plan pursuant to

paragraph (c), do not constitute rules

within the me aning of s ection 120.52 or

final orders within the meaning of

s ection 120.52 . Any physicianÓs fee

schedule used in the health and accident

plan shall not be available for inspection

or copying by medical providers or other

pe rsons not involved in the administration

of the program. However, in the

determination of the design of the program,

the department shall consider existing and

complementary benefits provided by the

Florida Retirement System and the Social

Security System .

* * *

Final decisions concerning enrollment, the

existence of coverage, or covered benefits

under the state group insurance program

shall not be delegated or deemed to have

been delegated by the department.

35 . The general rule is that the burden of proof, apart

from a statutory directive, is on the party asserting the

affirmative of an issue before an administrative tribunal.

Young v. Dep't of Cmty. Aff. , 625 So. 2d 831, 833 - 834 (F l a.

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). Petitioner, as the party asserting the right to

payment of her claim under the State EmployeesÓ PPO Plan, has

the initial burden of demonstrating by a preponderance of the

evi dence that her claim qualified for coverage . If Petitioner

meets this requirement , the burden shifts to Respondent to prove

that the claim was not covered due to the application of a

policy exclusion. Herrera v. C.A. Seguros Catatumbo , 844 So. 2 d

664, 66 8 (Fla. 3d DCA 2003); State Comprehensive Health AssÓn v.

Carmichael , 706 So. 2d 319, 320 (Fla. 4th DCA 1997).

36 . Insurance contracts are to be construed in accordance

with the plain language of the policy, with any ambiguity

construed against the insure r, and in favor of coverage. U.S.

Fire Ins. Co. v. J.S.U.B., Inc. , 979 So. 2d 871, 877 (Fla.

2007); Kohl v. Blue Cross & Blue Shield of Fla., Inc. , 988 So.2d

654, 658 (Fla. 4th DCA 2008). Exclusionary clauses are to be

construed even more strictly than c overage clauses. Purelli v.

State Farm Fire & Cas. , 698 So. 2d 618, 620 (Fla. 2d DCA 1997) .

37. Based on the Findings of Fact set forth above,

Petitioner has met her initial burden of demonstrating

entitlement to reimbursement for her stay at the H - P Pav ilion .

The facts established that her medical team determined that it

was a medical necessity for her to stay in the H - P Pavilion or a

similar facility 7 / in order to receive her continuing

transfusions and other treatments at Johns Hopkins. Petitioner

at all times had the option of remaining in or returning to

Johns Hopkins, at a much greater, and clearly reimbursable,

expense. The H - P Pavilion was located on the John - Hopkins

campus and served only John - Hopkins patients and their families.

The H - P Pavil ionÓ s billing document includes the Johns - Hopkins

Hospital on its letterhead.

38. DSGIÓs rejection of PetitionerÓs Level II appeal was

based on its interpretation of the undefined term ÐhotelÑ in the

Benefits Document. ÐWhen an insurer fails to define a term in a

policy , as it failed to do in this case, the insurer cannot take

the position that there should be a Ònarrow, restrictive

interpretation of the coverage provided.ÓÑ State Comprehensive

Health AssÓn v. Carmichael , 706 So. 2d 319, 320 - 321 (Fla. 4t h

DCA 1997), ( citing Budget Rent - a - Car Sys., Inc., v. GovÓt Empl.

Ins. Co. , 698 So. 2d 608, 609 (Fla. 4th DCA 1997) and quoting

NatÓl Merchandise Co. v. United Serv. Auto AssÓn , 400 So. 2d

526, 530 (Fla. 1st DCA 1981) ) . Neither the normal dictionary

defin ition of ÐhotelÑ nor the specific regulatory definition of

the term set forth in section 509.013, is applicable to the H - P

Pavilion.

39. The undersigned is mindful of the proposition that an

agencyÓs construction or application of a statute it is charged

with enforcing is entitled to great deference. However, such

deference is not necessary where the decision in question

requires no special agency expertise, or if the agencyÓs

interpretation conflicts with the plain and ordinary meaning of

the statute. F la. Hosp. v. Ag. for Health Care Admin . , 823 So.

2d 844, 848 (Fla. 1st DCA 2002). In this case, no special

agency expertise was required to read the plain language of the

Benefits Document and find that H - P Pavilion was not a ÐhotelÑ

under any reasonable definition of the term, and that

PetitionerÓs stay at the H - P Pavilion was medically necessary

and directly related to her treatment at John Hopkins. 8 /

40. Respondent has failed to meet its burden to prove that

PetitionerÓs claim was not covered due to t he application of a

policy exclusion. Petitioner is therefore entitled to

reimbursement for her stay at the H - P Pavilion.

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, enter a final order finding

that Petitioner is entitled to reimbursement for her stay at the

Hackerman - Patz Pavilion in Baltimore, Maryland , from

December 30, 2011 , through January 31, 2012 .

DONE AND ENT ERED thi s 1 8 th day of November, 2013 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 8 th day of November, 2013 .

ENDNOTES

1 / The date of Petit ionerÓs request for informal hearing was

unclear from the record, but DSGI has not raised the issue of

timeliness in this proceeding.

2 / Mr. Alexander testified that they chose an apartment rather

than a suite because the apartment had a range for cookin g and a

washer and dryer. The range was necessary because Petitioner

required a special diet that her father had to prepare. The

washer and dryer were necessary because PetitionerÓs

incontinence and persistent vomiting necessitated virtually

constant was hing of her clothing and bedclothes.

3 / At the final hearing, Florida Blue analyst , Jessica Bonin ,

testified that Florida Blue did not review PetitionerÓs claim in

terms of Ðmedical necessity.Ñ She confirmed that Florida BlueÓs

sole ground for rejecti ng PetitionerÓs Level I Appeal was that

the H - P Pavilion was a Ðmotel/hotel accommodation.Ñ

4 / DSGI submitted neither of the cited documents into evidence.

As noted in Finding of Fact 1, supra , it is assumed that the

version of the Benefits Document tha t was submitted into

evidence contains the identical information.

5 / This definition is taken from the online Oxford American

Dictionary at

http://www.oxforddictionaries.com/us/definition/american_english

/hotel.

6 / At the hearing, DSGIÓs nurse consulta nt Kathy Flippo

attempted to broaden the Benefits DocumentÓs exclusionary

language to cover all Ðhousing accommodations,Ñ but the clear

language of the Benefits Document is limited to Ð motel/hotel

accommodations.Ñ Ms. Flippo also attempted to broaden the

exclusion to apply to any location where medical services are

not offered, but the language of the Benefits Document is

limited to items or services that are not Ðdirectly related to

your treatment.Ñ There was an essential relationship between

PetitionerÓ s stay at the H - P Pavilion and her continuing

treatment at Johns Hopkins.

7 / Had Petitioner chosen to stay in a hotel, then her

accommodations would not have been reimbursable under the plain

language of the Benefits Document.

8 / It is again emphas ized that the exclusionary language in the

Benefits Document was stated in the conjunctive. To deny

PetitionerÓs claim, DSGI was required to find that her stay was

not medically necessary and that it was not directly related to

her treatment. Even if DSG I were correct that the stay in H - P

Pavilion was not Ðmedically necessaryÑ as that term is defined

in the Benefits Document, there is no rational ground for

concluding that PetitionerÓs stay was not directly related to

her treatment at Johns Hopkins.

COP IES FURNISHED :

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Clifford A. Taylor, Esquire

Department of Management Services

Suite 160D

4050 Esplanade Way

Tallahassee, Florida 32399

Tayna Carrie Alexander

Apartment 732

2400 Feather Sound Drive

Clearwater, Florida 33762

Jason Dimitris, Gen eral Co unsel

Department of Management Services

4050 Esplanade Way, S uite 160

Tallahassee, Florida 32399

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.