16-001724 Carole Dickson vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Wednesday, August 17, 2016.

Summary: Other than durable medical equipment charges, the evidence fails to establish that other charges were for "medically necessary" services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLE DICKSON,

Petitioner,

vs. Case No. 16 - 1724

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE,

Respondent.

_______________________________/

RECOMMENDED OR DER

On June 29 , 2016, an administrative hearing in this case

was held by video teleconference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: C arole C. Dickson , pro se

Duncan R. Dickson, pro se

8539 Summerville Place

Orlando, Florida 32819

For Respondent: Gavin D. Burgess, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in the case is whether certain expenses incurred

by Carole Dickson (Petitioner or Mrs. Dickson), the spouse of

state empl oyee Duncan R. Dickson, are covered benefits under the

applicable health insurance plan.

PRELIMINARY STATEMENT

Blue Cro ss and Blue Shield of Florida (Florida Blue ) denied

payment of certain expenses incurred by the Petitioner. The

Petitioner appealed th e denial to the Department of Management

Services, Division of State Group Health Insurance (Respondent).

By letter dated February 4, 2015, the Respondent notified

the Petitioner that the appeal had been denied. By letter dated

February 16, 2015, the Pe titioner requested a hearing. The

Respondent initially scheduled the matter for an informal

hearing, but the Petitioner filed a Notice of Dispute of

Material Facts, and, on May 27, 2015, the Respondent transferred

the dispute to the Division of Administra tive Hearings (DOAH),

where it was designated as Case No. 15 - 3020. On June 1, 2015,

the Respondent filed an unopposed Motion to Relinquish

Jurisdiction, which was granted on that date.

On March 28, 2016, the Respondent returned the dispute to

DOAH, wher e it was re - designated as Case No. 16 - 1724. The case

was scheduled to be heard on May 20, 2016, and was subsequently

rescheduled for June 29, 2016.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits 1, 5 through 7, 13 and 21

admitted into evidence. The Respondent presented the testimony

of two witnesses and had Exhibits 2, 4, 7 and 8 admitted into

evidence. (PetitionerÓs Exhibit 21 and RespondentÓs Exhibit 2

were the same document.)

No transcript of the hearing w as filed. Both parties filed

Proposed Recommended Orders that have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Duncan R. Dickson

was employed by the State of Florida and was insu red through the

State Employee PPO Plan (Plan). Carole Dickson, the spouse of

Duncan R. Dickson, had insurance coverage through Mr. DicksonÓs

family policy.

2. Florida Blue is the medical claims administrator for

the Plan.

3. The Respondent, identif ied in the Plan as the ÐPlan

Administrator,Ñ is the state agency responsible for resolving

appeals of medical claims denied by Florida Blue.

4. The insurance benefits available under the Plan are set

forth in the ÐPlan Booklet and Benefits DocumentÑ eff ective

January 1, 2012, as amended by the ÐSummary of Plan Description

and Material ModificationÑ document effective January 1, 2013 ,

and by the ÐSummary of Plan Description and Material

ModificationÑ document effective January 1, 2014 (collectively

identi fied herein as the ÐPlan DocumentÑ).

5. Section 15 of the Plan Document sets forth relevant

definitions.

6. The Plan Document defines ÐambulanceÑ as Ðany licensed

land, air or water vehicle designed, constructed, or equipped

for and used for transpo rting persons in need of medical or

surgical attention.Ñ

7. The Plan Document defines Ðcustodial care or servicesÑ

as follows:

[C]are or services that are maintenance in

nature that serve to assist an individual in

the activities of daily living, such a s

assistance in walking, getting in and out of

bed, bathing, dressing, feeding, using the

toilet, preparation of special diets, and

supervision of medication that usually can

be self - administered or administered by a

trained home care giver. Custodial Car e

essentially is care that does not require

the continuing attention of trained medical

or paramedical personnel and that can be

provided by or taught to home caregivers.

In determining whether a person is receiving

Custodial Care, consideration is given to

the level of care and medical supervision

required and furnished. A determination

that care received is Custodial is not based

on the patientÓs diagnosis, type of

Condition, degree of functional limitation

or rehabilitation potential.

Care or servic es that meet this definition

are not covered by the Plan. See section 5

of this booklet.

8. The Plan Document defines the phrase Ðmedically

necessaryÑ as follows:

[S]ervices required to identify or treat the

Illness, injury, Condition, or Mental and

N ervous Disorder a Doctor 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 r easons other than

convenience 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

prov ided.

The fact that a service is prescribed by a

Doctor does not necessarily mean that the

service is Medically Necessary. Florida

Blue and DSGI determine whether a service or

supply is Medically Necessary.

9. In relevant part, Section 3 of the Pla n Document sets

forth the following covered service categories:

Ambulance

Ambulance services must be Medically

Necessary to transport:

1. from a Hospital unable to provide care

to the nearest Hospital that can provide

proper care;

2. from a Ho spital to a home or nearest

Skilled Nursing Facility; or

3. from the place of an emergency to

nearest Hospital that can provide

appropriate care.

Air, helicopter, and boat transport are

covered if

1. the pick - up point is inaccessible by

ground;

2. speed in excess of ground speed is

critical; or

3. the travel distance is too far for

medical safety.

* * *

Durable Medical Equipment (DME)

Durable Medical Equipment includes, but is

not limited to, the following: wheelchairs,

crutches, ca nes, walkers, Hospital beds,

TENS units, CPAP devices and oxygen

equipment. Repair or replacement of DME due

to growth of a child or due to a change in

your Condition may be covered. Supplies and

service to repair DME may be covered only if

you own or ar e purchasing the equipment.

1. Coverage is limited to the standard

model unless an upgraded model is determined

to be Medically Necessary.

2. Coverage for the purchase of equipment

is limited to the Network Allowed Amount or

Non - Network Allowance m inus any amount

already paid by the Plan for rental.

3. Coverage for the rental of DME will not

exceed the Network Allowed Amount or Non -

Network Allowance for the purchase of such

equipment; if you continue to rent such

equipment, no additional payment s will be

made by this Plan.

4. Coverage for DME purchased after being

rented will be limited to the Network

Allowed Amount or Non - Network Allowance less

any amount already paid by the Plan for

rental.

* * *

Nursing services

Nursing care by a Regi stered Nurse (R.N.) or

Licensed Practical Nurse (L.P.N.) is

covered, including inpatient private duty

nursing only when Medically Necessary.

10. In relevant part, Section 5 of the Plan Document sets

forth the following exclusions from coverage:

The f ollowing services and supplies are

excluded from coverage under this Plan

unless a specific exception is noted.

Exceptions may be subject to certain

coverage limitations.

* * *

Personal comfort, hygiene or convenience

items and services deemed to be n ot

Medically Necessary and not directly 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. travel expenses (other than Medically

Necessary Ambulance services);

8. motel/hotel or other housing

accommodations or lodging (even if

recommended or prescribed by a physician);

9. equipment which is prim arily 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 po ols 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;

escala tors, elevators, stair glides;

emergency alert equipment; blood pressure

kits, handrails and grab bars; heat

appliances and dehumidifiers, vacuum

cleaners or any other similar equipment and

devices used for environmental control or to

enhance an environmen tal setting;

10. heating pads, hot water bottles, or ice

packs; and

11. massages except as described in

section 3.

In addition to the above, also excluded are

other services not directly used to provide

treatment.

11. Section 5 of the Plan Document additionally provides

as follows:

Additional exclusions include, but are not

limited to:

* * *

3. Services or supplies that are not

Medically Necessary, as determined by

Florida Blue and/or Express Scripts clinical

staff and DSGI.

4. Se rvices, supplies, care or treatment

provided by:

a. a person who usually lives in the

covered personÓs home; or

b. a person or facility that is not

included as covered in this Plan Booklet and

Benefits Document.

12. On May 12, 2014, Mrs. Dickson suffered a stroke and

while the Dickson s were in Carcassonne, France.

13. Mrs. Dickson was transported to an emergency room at

the local hospital. Mrs. Dickson was stabilized at the

hospital, and remained hospitalized thereafter.

14. Florida BlueÓs ÐBlueCard WorldwideÑ service provides

coordination of care for insureds such as the Petitioner , who

require medical care while traveling outside the United States.

In relevant part, Section 8 of the Plan Document provides as

follows:

Worldwide Coverage

This Plan will pay benefits for covered

services anywhere in the world you receive

them. When you receive medical care while

traveling in another country, you must

submit a claim to receive benefits and the

claim form must include a description of

servi ces in English and charges in US

dollars.

For information on providers outside the

U.S., contact the BlueCard Worldwide Service

Center at (877) 547 - 2903 from within the

U.S. or (collect) at (804) 673 - 1177, if

calling outside the U.S. See section 11 for

information on filing claims, including time

limits.

15. According to the Florida Blue representative who

testified at the hearing, BlueCard Worldwide case managers

monitor the medical care being provided to insureds in foreign

facilities, and make ar rangements, including identification of

alternative medical facilities and provider negotiation, to

obtain required medical services.

16. According to Mr. Dickson, communicating with the

hospital staff was difficult due to a language barrier, and he

did not believe the rehabilitation services provided in the

hospital were sufficient.

17. Mr. Dickson testified that he was advised by a doctor

at the hospital that Mrs. Dickson needed Ðmedical repatriationÑ

to be returned to the United States for rehabili tation services.

18. According to Florida Blue, there were rehabilitation

facilities within proximity to Carcassonne, France, to which

Mrs. Dickson could have been transferred.

19. There is no evidence that Mr. Dickson inquired about,

or was aware of , rehabilitation services available in the

vicinity of Carcassonne, France.

20. Although Mr. Dickson was in communication with

representatives from Florida Blue during Mrs. DicksonÓs

hospitalization, the records of the communications between

Mr. Dickso n and Florida Blue indicate that Mr. DicksonÓs

objective was to secure the return of his wife and himself to

the United States , so that she could obtain rehabilitation

services close to their home .

21. Mr. Dickson asked Florida Blue about the possibilit y

of transporting Mrs. Dickson from France to the United States.

22. The Plan Document specifically excludes travel

expenses except for Ðmedically necessaryÑ ambulance

transportation.

23. After reviewing Mrs. DicksonÓs medical records,

Florida Blue d etermined that the requested transportation was

excluded from coverage because Mrs. Dickson was receiving

services in the hospital to which she had been admitted.

24. Mr. Dickson thereafter contracted with Flying Nurses

International, LLC (Flying Nurses ) , to arrang e for the return of

the Dickson s to the United States.

25. Flying Nurses provides private nursing for persons

seeking such services while traveling, and coordinates related

transportation arrangements.

26. Flying Nurses arranged to transp ort the Dickson s from

the hospital to Orlando, Florida, and provided a registered

nurse, Sue Treseder, to assist Mrs. Dickson during the travel.

27. On or about May 23, 2014, Mseseder traveled from

her home base in Philadelphia, Pennsylvania, to Car cassonne,

France, where she stayed overnight in a hotel.

28. On or about May 24, 2014, Ms. T reseder accompanied the

Dicksons as they traveled by ambulance from the hospital in

Carcassonne to an airport in Toulouse, France, where they

boarded a commercia l flight and flew to Orlando, Florida.

29. Mseseder stayed overnight in an Orlando hotel and

returned to Philadelphia the next day.

30. Upon arrival in Orlando, Mrs. Dickson was transported

by a wheelchair van to a hospital and was eventually tra nsferred

from the hospital to a rehabilitation facility.

31. The total charge for the services provided by Flying

Nurses was $34,611.00. The Flying Nurses invoice itemized the

expenses as follows:

Flight nurse fee and RN flight

coordination

$2, 700

Patient airfare

$7,944.55

RN airfare

$11,993.45

Spouse airfare

$7,944.55

Ground transport (France)

$1,200.00

Ground transport (Orlando)

$250.00

RN lodging (France and Orlando)

$400.00

Equipment fee (reclining wheelchair &

oxygen)

$950.00

RN ground transportation

(France and US)

$250.00

RN per diem

$300.00

Service charge

$678.45

32. The Dickson s are se eking to be reimbursed for the

total charge , payment of which Flying Nurses required in

advance.

33. The evidence fails to establish that Mrs. DicksonÓs

repatriation from France to Orlando, Florida, was Ðmedically

necessary.Ñ

34. Even assuming, as as serted by Mr. Dickson, that the

services being provided by the hospital in Carcassonne were

insufficient, alternative rehabilitation facilities were

available within proximity to the Carcassonne hospital to which

Mrs. Dickson could have been transferred.

35. The Plan Document authorizes coverage for the services

of a registered nurse Ðonly when medically necessary.Ñ The

evidence fails to establish that Ms. TresederÓs services were

medically necessary. The charges for Ðflight nurse fee and RN

flight coo rdinationÑ and for Ms. TresederÓs airfare are not

reimbursable.

36. During the transport of Mrs. Dickson from the hospital

to Orlando, Ms. Treseder monitored Mrs. DicksonÓs physical

condition and blood pressure, delivered massage to address pain,

provid ed personal comfort services, and was available to

administer medication and oxygen, if needed. Such services are

defined by the Plan Document as Ðcustodial care or services,Ñ

and are specifically excluded from coverage.

37. Other than medically necess ary ambulance services, the

Plan Document specifically excludes travel expenses. The Plan

Document provides a definition of Ðambulance.Ñ Mrs. DicksonÓs

airfare is not reimbursable because the commercial passenger

airplane utilized for travel from Toulous e to Orlando was not an

ambulance.

38. Mrs. Dickson was transported by ambulance from the

hospital to the Toulouse airport. The evidence fails to

establish that transport by ambulance was medically necessary,

and the related charge is not reimbursable.

39. A wheelchair van was used to transport Mrs. Dickson to

the hospital upon her return to Orlando. A wheelchair van is

not an ambulance, and the related charge is not reimbursable.

40. Mr. Dickson was not ill, and his return from France to

the Uni ted States was not medically necessary. The charges for

his travel are not reimbursable under the Plan.

41. The Plan Document specifically excludes expenses for

ground transportation, lodging and per diem from coverage. The

charges for Ms. TresederÓs ground transportation, lodging and

per diem are not reimbursable.

42. The itemized invoice included a Ðservice chargeÑ of

$678.45, which was described as an Ðoverhead feeÑ imposed by

Flying Nurses. There is no evidence that the service charge was

medic ally necessary , and the charge is not reimbursable.

43. The itemized invoice included an Ðequipment feeÑ

charge of $950 for Ðreclining wheelchair & oxygen.Ñ During

transportation, Mrs. Dickson required the use of a reclining

wheelchair. The Respondent has stipulated to reimbursing the

wheelchair charge according to applicable policy limits.

44. A portable oxygen supply was made available to

Mrs. Dickson during transportation. The oxygen was

precautionary, and, fortunately, Mrs. Dickson did not nee d

access to the oxygen during travel. Had Mrs. Dickson needed

oxygen during the flight, it would not have been available on

the plane without the portable oxygen equipment that Flying

Nurses supplied.

45. The Respondent asserts that durable medical equ ipment

is covered only when medically necessary, and because the oxygen

was not used during the flight, it was not medically necessary.

46. The Plan Document includes coverage for Ðdurable

medical equipment , Ñ including oxygen equipment. The Plan

Docume nt does not require that the equipment be in constant use,

or be used at all in travel, to be medically necessary. Given

the circumstances of Mrs. DicksonÓs transportation, the

RespondentÓs assertion is unpersuasive, and the related oxygen

charge should b e reimbursed according to the applicable policy

limits.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2015) . 1/

48. Section 1 10.123(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 Respondent.

49. 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); Dep't of

Transp. v. J.W.C. Co . , 396 So. 2d 778, 788 (Fla. 1 st 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 the claim under

the Plan, the Petitioner had the initial burden of demonstrating

by a preponderance of the evidence that his clai m is qualified

for coverage. Assuming the Petitioner met the requirement to

establish coverage, the burden then shifts to the Respondent to

establish that the claim is excluded from coverage under the

terms of the policy. Herrera v. C.A. Seguros Catatumb o , 844

So. 2d 664, 668 (Fla. 3d DCA 2003); State Comprehensive Health

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

50. Other than the durable medical equipment charges

referenced herein, the evidence fails to establish that the

charges for which the Petitioner seeks reimbursement were

medically necessary or otherwise covered under the provisions of

the Plan Document.

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 Health Insurance, enter a

final order reimbursing the Petitioner for durable medical

equipment costs referenced herein, and otherwise denying the

PetitionerÓs claim for reimbursement.

DONE AND ENTERED this 1 7th day of August , 2016 , 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 - 3 060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of August, 2016 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Carole C. Dickson

Duncan R. Dickson

8539 Summerville Place

Orlando, Florida 32819

(eServed)

Gavin D. Burgess, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

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 case.