15-002892 John Allison vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Thursday, August 6, 2015.

Summary: Petitioner's medical expenses are for services exluded from insurance coverage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ALLISON,

Petitioner,

vs. Case No. 15 - 2892

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE,

Respondent.

_______________________________/

RECOMMENDED ORDE R

On July 14, 2015, an administrative hearing in this case was

held by video teleconference in Sebastian and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J ohn Allison, pro se

5859 Duskywing Drive

Cocoa, Florida 32955

For Respondent: Gavin D. Burgess, Esquire

Departme n t of Management Services

4050 Esplanade Way , Sui te 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in the case is whether medical expenses incurred

by state employee , John Allison (Petitioner) , are covered

benefits under the PetitionerÓs insurance plan.

PRELI MINARY STATEMENT

The PetitionerÓs insurer has denied payment of certain

medical expenses incurred by the Petitioner. The Petitioner

appealed the denial to the Department of Management Services,

Division of State Group Health Insurance (Respondent).

By l etter dated November 7, 2014, the Respondent notified

the Petitioner that his appeal was denied. The Petitioner

thereafter filed a request for an informal hearing with the

Respon dent.

On March 31, 2015, an informal hearing was convened, during

which the p residing hearing officer determined that there was a

disputed issue of material fact presented by the case. The

hearing officer entered an Order Transferring Matter to the

Division of Administrative Hearings (DOAH). On May 22, 2015, the

Respondent submit ted the dispute to DOAH, which scheduled and

conducted the formal hearing.

At the hearing, the Petitioner testified on his own behalf.

The Respondent presented the testimony of one witness and had

Exhibits 1 through 5 and 7 through 8 admitted into evidenc e.

No transcript of the hearing was filed. The Respondent

filed a Proposed Recommended Order and the Petitioner submitted a

letter, both of which have been considered in the preparation of

this Recommended Order.

FINDING S OF FACT

1. The Petitioner is em ployed by the State of Florida and

receives medical benefits through an HMO Standard Medical Plan

(the Plan) made available to state employees.

2. The Plan is administered by Aetna. The Respondent is

the state agency responsible for resolving appeals of medical

claims denied by Aetna.

3. Approximately five years ago, the Petitioner had surgery

to install a Ðlap - bandÑ into his abdomen.

4. A lap - band is a weight loss device used to restrict the

amount of food that a patient can ingest at one time. Th e

restriction reduces caloric intake and generally results in

weight loss.

5. Prior to installation of the lap - band, the Petitioner

was Ðmorbidly obeseÑ with a history of gastric reflux and

previous esophageal strictures treated by dilation.

6. In 20 14, the Petitioner began to re - experience reflux

and had episodic problems swallowing food and liquid

(ÐdysphagiaÑ). He reported the issue to his physician during an

office visit on April 30, 2014. The records of the office visit

identify the reason for the appointment as Ðband issues.Ñ

7. The physician scheduled the Petitioner for fluoroscopy -

guided lap - band adjustment, which was performed at Viera Hospital

on May 6, 2014.

8. Fluoroscopy is an x - ray process that essentially

provides a Ðreal - timeÑ m oving image of a patient. Fluoroscopy

can be used as a diagnostic tool for a variety of conditions.

9. The evidence in this case establishes that the

PetitionerÓs physician ordered the procedure specifically to

observe and adjust the PetitionerÓs lap - b and.

10. The scheduling order for hospital radiology services

identifies the procedure being performed as Ðlap - band

fluoroscopy - guided adjustment.Ñ The post - procedure radiology

imaging report identifies the service provided as Ð[f]luoroscopy

assistance provided to assess and/o r assist lap band adjustment.Ñ

11. Prior to the procedure, a request was submitted to

Aetna for precertification of Ðadjustment of gastric band

diameter via subcutaneous port by injection or aspiration of

saline.Ñ According to th e precertification form admitted as an

exhibit at the hearing , Aetna responded, Ðthe requested service

does not require precertification but may not be eligible for

coverageÑ under the Plan.

12. In order for a claim for benefits to be covered by the

Pla n, the treatment provided must be both medically necessary and

a covered benefit. A treatment may be medically necessary but

excluded from coverage.

13. The Plan contains the following exclusion relevant to

surgical installation of a lap - band:

Obesit y and weight reduction treatment,

including surgical operations and medical

procedures for the treatment of morbid

obesity, unless determined to be medically

necessary by the Health Plan, such as

intestinal or stomach by - pass surgery and a

weight loss prog ram required by the covered

personÓs primary care physician prior to

surgery.

14. Under the Plan, and absent evidence that the original

installation of the PetitionerÓs lap - band was determined to be

Ðmedically necessaryÑ by the Plan or required by the PetitionerÓs

primary care physician prior to surgery, the installation of the

lap - band would be a non - covered service.

15. At the hearing, the Petitioner testified that the

charges related to the installation of the lap - band had been paid

for by his pre vious insurer, but there was no evidence presented

as to actual coverage or exclusions contained in the previous

insurance. There is no evidence that the PetitionerÓs lap - band

has been determined to be Ðmedically necessaryÑ or required by a

primary care p hysician prior to surgery.

16. As to the specific service at issue in this case, the

PetitionerÓs dysphagia was a complication caused by the lap - band

and specifically excluded from coverage. The Plan specifically

excludes Ð[c]omplications of non - covere d services, including the

diagnosis or treatment of any condition which arises as a

complication of a non - covered service.Ñ

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

procee ding. §§ 120.569 and 120.57, Fla. Stat.

18. Section 110.123(5), Florida Statutes, assigns

responsibility to render final decisions on matters of

enrollment, the existence of coverage, or covered benefits under

the state group insurance program to the R espondent.

19. Absent a contrary statutory directive, the general rule

is that the burden of proof in an administrative hearing is on

the party asserting the affirmative of an issue. Young v. Dep't

of Cmty. Aff. , 625 So. 2d 831, 833 - 834 (Fla. 1993); De p'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).

As the party asserting the right to payment of his claim under

the Plan, the Petitioner had the initial burden of demon strating

by a preponderance of the evidence that his claim is qualified

for coverage. Assuming the Petitioner meets this requirement,

the burden then shifts to the Respondent to establish that the

claim is excluded from coverage under the terms of the pol icy.

Herrera v. C.A. Seguros Catatumbo , 844 So. 2d 664, 668 (Fla. 3d

DCA 2003); State Comprehensive Health AssÓn v. Carmichael , 706

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

20. Insurance contracts are to be construed in accordance

with the plain language o f the policy, with any ambiguity

construed against the insurer, 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). Excl usionary clauses are to be

construed even more strictly than coverage clauses. Purelli v.

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

It is well settled that insurance policy exclusionary clauses

that are ambiguous or otherwise suscep tible to more than one

meaning must be liberally construed in favor of the insured and

strictly against the insurer. Harnett v. Southern Ins. Co. , 181

So. 2d 524 (Fla. 1965) ; State Farm Mut. Auto Ins. Co. v. Pridgen

498 So. 2d 1245 (Fla. 1986). Ambiguity is not necessarily

present simply because analysis is required to interpret the

policy. However, ambiguity exists in an insurance policy when

its terms make the policy subject to different reasonable

interpretation s , one of coverage and one of exclusion. Blue

Shield of Fla., Inc., v. Woodlief , 359 So. 2d 883 (Fla. 1st DCA

1978) ; Traveler's Ins. Co. v. Gayfer's & Co., Inc. , 366 So. 2d

1199 (Fla. 1st DCA 1979).

21. In this case, the Petitioner has failed to establish

that his claim is qualified for cove rage. Although the

Petitioner testified that his previous insurer had approved and

paid the claims related to installation of the lap - band, the

evidence failed to establish the circumstances under which the

claims were paid , or that the lap - band was deter mined to be

Ðmedically necessaryÑ by an insurer or was required by a primary

care physician prior to surgery.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Management

Services, Div ision of State Group Health Insurance, enter a final

order denying the PetitionerÓs claim for the fluoroscopy - guided

lap - band adjustment performed at Viera Hospital on May 6, 2014.

DONE AND ENTERED this 6 th day of August , 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah .state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of August , 2015 .

COPIES FURNISHED:

John Glenn Allison

5859 Duskywing Drive

Cocoa, Florida 32955

Gavin D. Burgess, Esquire

Departme n t of Management Services

405 0 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this ca se.