13-004684MTR Elsa Parnau Hunt And Eric Hunt, Individually, As Parents Of Ethan Hunt, Deceased, And As Co-Personal Representatives Of The Estate Of Ethan Hunt vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, July 29, 2014.

Summary: Because a valid lien no longer exists, and AHCA's subrogation and assignment rights for reimbursement for medical expenses paid by Medicaid have expired, AHCA is not entitled to any portion of Petitioners' wrongful death settlement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELSA PARNAU HUNT AND ERIC HUNT,

INDIVIDUALLY, AS PARENTS OF

ETHAN HUNT, DECEASED, AND AS CO -

PERSONAL REPRESENTATIVES OF THE

ESTATE OF ETHAN HUNT,

Petitioners,

vs. Case No. 13 - 4684MTR

AGENCY FOR HEALTH CARE

ADMINI STRATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy, in

Tallahassee , Florida, on May 13 , 2014.

APPEARANCES

For Petitioner s : Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

For Respondent: Adam James Stallard, Esquire

Post Office Box 12188

Tallahassee, Florida 32317 - 2188

STATEMENT OF THE ISSUE S

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 satisfa ction of the lien from a settlement

received by Petitioners from a third - party . 1/

PRELIMINARY STATEMENT

On December 6, 2013, Petitioners filed a Petition to

Determine Amount Payable to the Agency for Health Care

Administration in Satisfaction of Medic aid Lien. The final

hearing in this matter was originally scheduled for February 13,

2014. After a series of unopposed motions for continuance based

upon Respondent's delay in timely responding to discovery , and

the unavailability of witnesses and counse l, the final hearing

was held on May 13, 2014.

Petit i oners presented the testimony of two fact and expert

witnesses, Robert Bor r ello, Esquire, and Herman Russomanno,

Esquire. Petitioners' Exhibits 1 through 24, 26 through 29 ,

and 32 were admitted int o evidence. Respondent offered no

witnesses or documentary evidence. The parties filed a Joint

Pre - hearing Stipulation, and the facts stipulated there in are

accepted and made a part of the Findings of Fact below. The

Transcript of the final hearing , con sisting of one volume, was

filed June 9, 2014, and the parties timely filed proposed orders

that have been carefully considered by the undersigned in the

preparation of this Final Order .

At the request of both parties, official recognition was

taken of per tinent legal authorities. Unless otherwise noted,

all statutory references are to Florida Statutes (2013).

FINDING S OF FACT

1. Ethan Hunt (Ethan) , was born on January 7, 2003 , and

died on May 31, 2006, from complications arising from his birth -

related ca tastrophic neurological injury and severe disabilities.

2. 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 agains t 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.

3. 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 com panionship" of their deceased son.

Further, the wrongful death action sought , on behalf of the

Estate, recovery of "medical and funeral expenses."

4. Ethan was a Medicaid recipient and a portion of his

medical care was paid for by Medicaid. Respondent, Agency for

H ealth Care A dministration ( A HCA), 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 receive d medical treatments for w hich

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.

5. As a condition of Ethan ' s eligibility for Medicaid,

Ethan 's right to recover from lia ble 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.

6 . Pursuant to section 409.910(6)(c), Florida Statutes,

AHCA's Medicaid l ien attached and was perfected on June 11, 2003,

when Ethan first received medical care for which Medicaid was

obligated to make payments. O n 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 AHCAÓs contracted

vendor , Health Management Systems (HMS ) , AHCA indicated that the

Medicaid lien was in the amount of $315,632.17.

7 . On July 11, 2 008, the Hunts, on behalf of themselves and

Ethan's Estate, submitted to all defendants in the wrongful death

action, Plain tiffsÓ Proposal f or Settlement t o All Defendants

(Proposal). The P roposal offered a settlement of $7,250,000.00

to be allocated as f ollows:

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%

8 . The Hunt s ' July 11, 2008 , P roposal was rejected , and a

mediation of the wrongful death lawsuit was held on Ma y 12, 2009.

9 . By letter dated May 4, 200 9 , to HMS , the attorney

representing the Hunts in the wrongful death action notifie d

AHCA's designated vendor of the May 12, 2009, mediation and

provided a copy of the notice of mediation. AHCA did not attend

or p articipate in the mediation.

10 . A global settlement was reached at the May 12, 2009 ,

mediation for the total amount of $1,800,000.00 . A s 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 E state. This allocation

was memorialized in the Addendum to Mediation Settlement

Agreement Allo cation of Settlement (Addendum) . Each parent was

allocated a total amount of $81 9 ,000.00 "in satisfac tion 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 ac cordance

with the percentages as presented in the prior Proposal.

11 . 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.

12 . On Jun e 9, 2009, the court entered a Final Judgment of

Dismissal with Prejudice.

13 . AHCA took no action to intervene in the wrongful death

action or to seek relief from the settlement reached by the

parties.

14 . Upon receipt of the settlement proceeds, the am ount 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

s ection 409.910(17).

1 5 . Pursuant to 42 U.S.C. s ection 1396a(a)(25)(A), (B) ,

and (H), s ection 1396k(a), and s ection 1396p(a), AHCA may only

assert a lien against, and seek recovery from, the portion of a

Medicaid recipientÓs settlement representing the Med icaid

recipientÓs compensation for medical expenses paid by Medicaid.

16. 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 tha t this

calculation be based on the EstateÓs recovery of $162,000 .00 ,

minus the Estate's share of attorneys' fees and the EstateÓs

$15,559.01 share of the litigation costs (which represents the

EstateÓs 9% proportionate share of the gross $172,877.87 in

lit igation cost).

1 7. AHCA refused to calculate the amount payable to AHCA in

accordance with s ection 409.910(11)(f), Florida Statutes, and

continues to seek payment of its full $315,632.17 L ien from the

gross settlement award, including those funds allocate d to the

parents for their individual claims.

18. Pursuant to s ection 409.910(6)(c)9 . , a Medicaid lien

exist s 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 wit hin the 90 - day period p receding the

expiration of the original l ien.

19. In the instant case, AHCA recorded its Lien on May 25,

2005. By operation of la w, this Lien c eased to exist on May 25,

2012 ( seven years after it was recorded on May 25, 2005). AHC A

did n ot extend the existence of the L ien by again recording it

within the 90 - day time period preceding its expiration on May 25,

2012. A ccordingly, AHCAÓs L ien no longer exists.

20. 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 peri od 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.

21 . 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.

2 2 . Based on the undersigned's finding that no enforceable

Lien exists , and that AHCA's subrogati on and assignment rights

are extinguished, as discussed more fully in the Conclusions of

Law, there is no need to address any of the other factu al

contentions of the parties. 3/

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings (DOAH) has

juri sdiction over the subject matter and the parties in this

case, and f inal o rder authority pursuant to sections 120.569,

120.57(1), and 409.910(17), Florida Statutes.

24 . As a condition for receipt of federal Medicaid funds,

states are required to seek reim bursement for medical expenses

incurred on behalf of beneficiaries who later recover from third -

party tortfeasors. See Ark. Dep't of Health & Hum. Servs. v.

Ahlborn , 547 U.S. 268 , 276 (2006). To secure reimbursement from

liable third parties, the state m ust require a Medicaid recipient

to assign to the state his right to recover medical expenses

from those third parties. In relevant part, 4 2 U.S.C.

s ection 1396a(a)(25) provides:

(H) that to the extent that payment has been

made under the State Plan for medical

assistance in any case where a third party

has a legal liability to make payment for

such assistance, the State has in effect laws

under which, to the extent that payment has

been made under the State Plan for medical

assistance for health care ite ms or services

furnished to an individual, the State is

considered to have acquired the rights of

such individual to payment by any other party

for such health care items or services.

25 . To comply with this federal mandate , the Florida

Legislature enact ed section 409.910 , Florida's Medicaid Third -

Party Liability Act . This statute authorizes and requires the

State , through AHCA, to be reimbursed for Medicaid funds paid for

a recipient' s medical care when that recipient later receives a

personal injury ju dgment or settlement from a third party. Smith

v. Ag. for Health Care Admin. , 24 So. 3d 590, 590 (Fla. 5th DCA

2009).

26 . Section s 409.910(6) (a), (b) , and (c) , Florida Statutes,

provide AHCA with three means of recovery for the full amount of

medical ass istance paid by Medicaid: subrogation, assignment ,

and an automatic lien on any judgment or settlement for the

medical assistance provided by Medicaid.

27. Section 409.910(11) provides:

The agency may, as a matter of right, in

order to enforce its rights under this

section, institute, intervene in, or join any

legal or administrative proceeding in its own

name in one or more of the following

capacities: individually, as subrogee of the

recipient, as assignee of the recipient, or

as a lien holder of the c ollateral.

(emphasis added).

28 . These recovery rights are not without limitation.

Section 409.910 (11)(h) states:

Except as otherwise provided in this section,

actions to enforce the rights of the agency

under this section shall be commenced within

fiv e years after the date the cause of action

accrues, with the period running from the

lat er of the date of discovery by the agency

of a case filed by a recipient or his or her

legal representative, or of discovery of any

judgment, award, or settlement conte mplated

in the section, or of discovery of facts

giving rise to a cause of action under this

section. Nothing in this paragraph affects

or preven ts a proceeding to enforce a lie n

during the existence of a lien as set forth

in subparagraph (6) ( c )9. (empha sis added).

29 . Section 409.910(6)(c)9 . provides:

The lien created by this paragraph is a first

lien and superior to liens and charges of any

provider, and shall exist for a period of

seven years, if recorded, after the date of

recording; and shall exist for a period of

seven years after the date of attachment, if

not recorded. If recorded, the lien may be

extended for one additional period of seven

years by rerecording the claim of lien within

the 90 - day period preceding the expiration of

the lien.

30 . AHCA recorded its Lien on May 25, 2005. The L ien

expired seven years later on May 25, 2012 , by operation of law

when AHCA failed to timely rerecord it.

31 . A review of the parties Ó Joint Pre - hearing Stipulation

and AHCA's Proposed Final Order indicates that AHCA does not

contest that the L ien expired. Rather, AHCA asserts that DOAH

lacks jurisdiction to determine anything other than the

recoverable amount of the lien from Petitioners' settlement.

32 . Additionally, AHCA alleges that the expiration of t he

L ien is a non - issue because it contends its rights of subrogation

and assignment are not affected by the extinguishment of the

Lien , and AHCA has no obligation to take affirmative action to

enforce these rights.

3 3 . Th e extent of DOAH's jurisdiction is set forth in

section 409.910(17) , which provides:

(b) A recipient may contest the amount

designated as recovered medical expense

damages payable to the agency pursuant to the

formula specified in paragraph (11)(f) by

filing a petition under chapter 120 w ithin

21 days after the date of payment of funds to

the agency or after the date of placing the

full amount of the third - party benefits in

the trust account for the benefit of the

agency pursuant to paragraph (a). The

pe tition shall be filed with the Divi sion of

Administrative H earings. For the purposes of

chapter 120, the payment of funds to the

agency with the placement of the full amount

of the third - party benefits in the trust

account for the benefit of the agency

constitutes final agency action and n otice

thereof. Final order authority for the

proceedings specified in the subsection rests

with the Division of Administrative Hearings.

This procedure is the exclusive method for

challenging the amount of third - party

benefits payable to the agency. 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 th a n the amo unt

calculated by the agency pursuant to the

formula set forth in paragraph (11)(f) or

that Medicaid provided a lesser amount of

medical assistance than that asserted by the

agency.

3 4 . It is axiomatic that every court has judicial power to

hear and dete rmine the question of its own jurisdiction, both as

to the parties and as to subject matter , and necessarily does so

by proceeding in the cause. State ex. r el. BF Goodrich Co. v .

Trammel , 140 Fla. 500 (Fla. 1939); Sun Ins. Co. v . Boyd , 105 So.

2d 574 (Fla . 1958)(a tribunal always has jurisdiction to

determine its own jurisdiction).

3 5 . Here, AHCA contends that section 409.910(17) provides

D O AH the limited jurisdiction to decide how to apply the

statutory formula for determining the appropriate amount of

r eimbursement AHCA may receive from a settlement with the third -

party tortfeasor . AHCA argues that the undersigned has no

authority to decide whether any recovery rights exist at all --

only the amount of such recovery rights.

3 6 . This is similar to the arg ument considered and rejected

by the Florida Supreme Court in Fl orida Birth - Related

Neurological Injury Comp ensation Ass ociatio n v. Fl orid a D iv ision

o f A dmin istrative H earings , 948 So. 2d 705 (2007) . The issue in

that case was whether an Administrative La w Judge (ALJ), when

considering a claim under the Florida Birth - Related Neurological

Injury Compensation Act (NICA), section 766.303(2), Florida

Statutes (1997), ha d jurisdiction to determine whether or not a

healthcare provider complied with the "N otice t o O bstetrical

Patients of P articipation in the Plan " as required by

section 766.316 , Florida Stat u tes (1997) . 4/

3 7 . When an infant suffers what may be a birth - related

neurological injury, NICA provides that the claimant, usually the

infant's parent, must file a claim for compensation under the

NICA Plan with the Florida Birth - Related Neurological Injury

Compensation Association. The claim is then reviewed by a

medical advisory panel which makes a written recommendation as to

whether the claim is compensab le under the NICA Plan . After the

panel makes its recommendation, the claim is heard and determined

in an administrative hearing before an ALJ. The ALJ must

consider, but is not bound by, the recommendation of the medical

advisory panel.

3 8 . The 1997 NI CA statute explicitly required the ALJ to

make three independent findings based upon all available

evidence. First, the ALJ was required to determine whether the

claim was a birth - related neurological injury. Second, the ALJ

was to determine whether the injury was caused by a participating

healthcare provider as defined by the statute. Finally , if the

first and second requirements were met, the ALJ was required to

determine the amount of the award without any regard for fault.

If the ALJ determined that the claim was compensable,

compensation under the NICA Plan became the claimant's exclusive

remedy. The claimant could not bring or maintain a civil suit in

violation of NICA's exclusive remedy provision.

3 9 . T here wa s a condition precedent to NICA's ex clusivity.

Pre - delivery notice of the healthcare provider's participation in

the NICA Plan was required to be given as required by the

statute. The 1997 statute was silent regarding an ALJ's

jurisdiction to determine, as a preliminary matter, whether

app ropriate pre - delivery notice was provided.

40 . In two cases before the Second District Court of

Appeal, the parents of injured children alleged , in the

administrative proceeding , that the applicable notice ha d not

been provided , and , therefore , they could elect to pursue an

administrative NICA claim or a medical malpractice action in

circuit court , and the ALJ s agreed. The Second District reversed

the ALJ s ' orders because it determined that NICA did not

expressly give an ALJ jurisdiction to make findings regarding

notice. These decisions were in conflict with decisions from the

Third, Fourth , and Fifth District Courts of Appeal.

41 . In resolving the conflict between the district courts,

the Supreme Court reasoned :

In order to "hear and determine" a cla im,

an ALJ must, almost of necessity, decide

whether notice was given, because if no

notice was given, the exclusivity provision

of the statute does not apply. Further, an

ALJ has "exclusive jurisdiction" to determine

whether a claim is compensable under the NICA

Plan . In the absence of notice, the Plan

does not apply. Given these provisions, we

are led to conclude that an ALJ has

jurisdiction to determine whether notice is

given. As established law provides, an ALJ

must have jurisdiction to determine w hether

the ALJ has jurisdiction (citing Sun Ins. Co.

v . Boyd , 105 So. 2d 574, 575 (Fla. 1958) ) .

Fla. Birth - Related Neurological Injury Comp. Ass'n v. Fla. Div.

o f Admin. Hearings , 948 So. 2d 705, 715 (2007).

4 2 . Similarly, in the instant case, in order t o make a

determination regarding the amount of Petitioners' settlement

which is recoverable as reimbursement for medical expenses paid

by Medicaid, the undersigned must preliminarily determine that in

fact, AHCA has any recovery rights pursuant to a lien,

subrogation or assignment.

4 3 . The plain language of section 409.910 (6)(c) 9 . makes

clear that a lien must be properly recorded within seven years

and thereafter timely renewed in order for AHCA to maintain its

recovery rights pursuant to the lien. Furthe r, the plain

language of section 409.910(11)(h) requires that actions to

enforce the subrogation or assignment rights of AHCA must be

initiated within the applicable five - year statute of limitations.

In this case, AHCA failed to do either . Accordingly, b y

operation of law, no enforceable l ien exists, and AHCA's

subrogation and assignment rights are extinguished .

44 . The undersigned rejects AHCA's argument that its

May 25, 2005 , filing of the C laim of L ien and Notice of

Assignment and Other S tatutory R igh ts is sufficient, in and of

itself, to allow AHCA to receive a determination in this

proceeding of the amount of its entitlement to reimbursement from

the Petitioners' settlement. AHCA's argument erroneously

presumes that assignment and subr ogation rights are somehow self -

enforcing or that the May 25, 2005, filing was sufficient

" enforcement " action within the five - year statute of limitations

to protect its rights to subrogation and assignment.

45 . As explained in Cramer v. John Alden Life Ins urance

Co. , 763 F. Supp . 2d 1196 (D.C. Mont. 2011), there is a

substantive distinction between "asserting" a right of

subrogation, which was done by the insurance company d uring the

course of pre - litigation correspondence and by sending a "Notice

of Subrogation" in Cr amer , and "going so far as to 'enforce' a

right of subrogation by initiating a judicial proceeding." Id.

at 1211, 1213. The C ourt held that the insurance company did not

wrongfully and prematurely "enforce" a right of subrogation in

the absence of any ju dicial action whatsoever to enforce its

right of subrogation.

4 6 . Cramer argued that her insurance carrier's

correspondence regarding its final lien amount and "Notice of

Subrogation" constituted an "enforcement" of the subrogation

claim because it prohib ited her counsel from distributing the

claimed funds from a third - party tortfeasor until the existence

or amount of the claim lien or subrogation claim could be

resolved. See Id. a t 1213.

47 . In rejecting Cramer's argument, the Court held that

Cramer's r eading of the word "enforced" is "so broad as to be

unreasonable." Id. The Court reasoned that the correspondence

simply reflects that the parties were embroiled in a dispute as

to whether Cramer had been made whole and whether the insurance

company woul d be entitled to subrogate.

48 . Judicial proceedings, initiated within the applicable

statute of limitations, are a necessary prerequisite to

"enforcing" a right of subrogation or assignment. To hold

otherwise would render the five - year statute of limita tions

provision contained in section 409.910(11)(h) meaningless.

AHCA's decision to only record the Lien, take no affirmative

action to timely rerecorded it , or to "institute, intervene in,

or join any legal or administrative proceeding in its own name"

r esults in its rights of subrogation and assignment to be

extinguished in this case.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is DETERMINED that the amount of AHCA's Medicaid lien,

subrogation , or assignment rights, payable f rom Petitioners'

settlement , is ZERO.

DONE AND ORDERED this 2 9 th day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of July , 2014 .

ENDNOTE S

1/ In the Joint Pre - hearing Sti pulation, the parties agreed that

this case "involves the determination of the amount payable to

AHCA in satisfaction of its Medicaid lien." However, in their

p roposed f inal o rders, both parties also addressed whether AHCA

has recovery rights against Peti tioners' wrongful death

settlement through subrogation or assignment. Accordingly, these

arguments are addressed herein.

2/ Section 409.910(11)(f) provides in part that:

Notwithstanding any provision in this

section to the contrary, in the event of a n

action in tort against a third - party in which

the recipient or his or her legal

representative is a party which results in

the judgment, award, or settlement from a

third party, the amount recovered shall be

distributed as follows:

1. After attorney ' s fees and taxable costs

as defined by the Florida Rules of Civil

Procedure, one - half of the remaining recovery

shall be paid to the agency up to the total

amount of medical assistance provided by

Medicaid.

2 . The remaining amount of the recovery

shall be paid to the recipient.

3. For purposes of calculating the

agency's recovery of medical assistance

benefits paid, the fee for services of an

attorney retained by the recipient or his or

her legal representative shall be calculated

at 25% of the judg ment, award, or settlement.

3/ The testimony and evidence at final hearing primarily

addressed the issue of whether the allocation made in the

addendum for reimbursement of medical expenses was fair and

appropriate. Because the undersigned finds there i s no existing

lien, subrogation, or assignment right of AHCA, no findings of

fact are made as to the appropriate allocation of the settlement

funds.

4/ NICA was revised by the L egislature in 2003 and 2006 to

explicitly provide that the ALJ has exclusive jurisdiction to

determine whether appropriate notice was provided to parents

regarding whether their medical providers participate in the NICA

program. Additional references to the language and obligations

of NICA are to the 1997 and 1998 version s in effe ct prior to

revision.

COPIES FURNISHED:

Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

Adam James Stallard, Esquire

Post Office Box 12188

Tallahassee, Florida 32317 - 2188

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Cle rk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Flori da Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 day s of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party re sides or

as otherwise provided by law.