16-002084MTR Ana Patricia Delgado, Individually, As Mother Of Ashley Nunez, Deceased, And As Personal Representative Of The Estate Of Ashly Nunez; And John D. Nunez, Individually, And As Father Of Ashly Nunez, Deceased vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Wednesday, February 28, 2018.

Summary: AHCA is entitled to recover the full amount of its Medicaid lien because the procedure in sec. 409.910(17)(b) is unavailable to the Petitioners.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA PATRICIA DELGADO,

Individually, as mother of

ASHLEY NUNEZ, deceased, and as

Personal Representative of the

Estate of ASHLY NUNEZ; and JOHN

D. NUNEZ, Individually, and as

father of ASHLY NUNEZ, dec eased,

Petitioners,

vs. Case No. 16 - 2084MTR

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

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

via video teleconference betw een sites in Tallahassee and Miami,

Florida, on August 5, 2016, before Garnett W. Chisenhall, Jr., a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

For Respondent: Alexander R. Boler, Esquire

Xerox Recovery Services

Suite 300

207 3 Summit Lake Drive

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue to be determined is the amount to be reimbursed

to Respondent, Agency for Health Care Administration (ÐAHCAÑ),

for medical expenses paid on behalf of Ashley N unez pursuant to

section 409.910, Florida Statutes (20 1 6 ) , 1/ from settlement

proceeds received by Petitioners from third parties.

PRELIMINARY STATEMENT

On April 18, 2016, Petitioners filed a ÐPetition to

Determine Amount Payable to [AHCA] in Satisfaction of Medicaid

Lien, Ñ by which they challenged AHCAÓs lien for recovery of

medical expenses paid by Medicaid in the amount of $357,407.05.

The basis for the challenge was the assertion that the

applic ation of section 409.910(17)(b) warranted reimbursement o f

a lesser portion of the total third - party settlement proceeds

than the amount calculated by AHCA pursuant to the formula

established in section 409.910(11)(f).

The final hearing was scheduled for July 26, 2016. In

response to a Joint Motion for Contin uance filed on May 17,

2016, the undersigned continued the final hearing to August 5,

2016, and the final hearing was held as scheduled.

The parties filed a Joint Pre - hearing Stipulation in which

they identified stipulated facts for which no further proo f

would be necessary. The stipulated facts have been accepted and

considered in the preparation of this F inal O rder.

During the final hearing, Petitioners presented the

testimony of Tomas F. Gamba, Esquire, and Herman J. Russomanno,

Esquire, and the und ersigned accepted PetitionersÓ Exhibit s

1 through 9 into evidence . AHCA presented the testimony of

James H.K. Bruner, Esquire, and the undersigned accepted AHCAÓs

Exhibit A into evidence.

The undersigned granted the partiesÓ joint ore tenus motion

to se al PetitionersÓ Exhibits 1 and 6, and Resp ondentÓs

Exhibit A.

The T ranscript from the final hearing was filed on

September 7, 2016. On September 19, 2016, the parties filed a

joint m otion request ing that the deadline for their proposed

final orders be e xtended to September 21, 2016. The undersigned

granted that joint m otion , and the parties timely filed their

Proposed Final Orders.

On September 22, 2016, AHCA filed an Ð Unop posed Motion to

Amend Proposed Final OrderÑ along with its Amended Proposed

Fin al Order. Via an Order issued on September 23, 2016, the

undersigned granted that m otion.

Both of the Proposed Final O rders have been duly considered

in the preparation of this F inal O rder.

FINDING S OF FACT

Facts Pertaining to the Underlying Personal Injury Litigation

and the Medicaid Lien

1. On February 13, 2010, Ashley Nunez (ÐAshleyÑ), who was

three years old at the time, presented to a hospital emergency

room with a fever . A ch est X - ray indicated that Ashley had left

lobe pneumonia.

2. T he h ospital ordered no blood work or blood cultures

and did not investigate the cause of AshleyÓs pneumonia.

3. The hospital discharged Ashley with a prescription for

Azithromycin.

4 . By February 14, 2010, AshleyÓs fever was 102.9 degrees ,

and AshleyÓs mother took her to a pediatrician. Rather than

attempting to discover the cause of the fever, t he pediatrician

instructed AshleyÓs mother that the pre scription needed time to

work and instructed her to bring Ashley back if the fever

persisted.

5 . On Feb ruary 16, 2010, AshleyÓs aunt returned her to the

pediatrician because AshleyÓs fever was persisting and she had

developed abdominal pain. Due to a concern that Ashley was

suffering from appendicitis, the pediatrician referred her to an

emergency room.

6 . Later that day, AshleyÓs moth er returned her to the

emergency room that had treated Ashley on February 13, 2010.

A second chest x - ray revealed that AshleyÓs pneumonia had gotten

much worse, and the hospital admitted her .

7 . AshleyÓs respiratory conditi on continued to

deteriorate, and blood cultures confirmed that she had

streptococcus pneumonia.

8 . Two days after her admission, the hospital decided to

transfer Ashley to a hospital that could provide a higher level

of care.

9 . On February 18, 2010, an ambu lance transferred Ashley

to a second hospital. Even though AshleyÓs respiratory

condition continued to deteriorate, the paramedics and hospital

transport team did not intubate her.

10 . Upon her arrival at the second hospital, Ashley had

suffere d a cardiopulmonary arrest and had to be resuscitated

with CPR and medication.

1 1 . The lack of oxygen to AshleyÓ s brain and other organs

resulted in catastrophic harm leading Ashley to be intubated,

placed on a ventilator, fed through a gastric feeding tube , and

placed on dialysis .

1 2 . The second hospital discharged Ashley two and a half

months later. While she no longer required a ventilator or

dialysis, the hypoxic brain injury and cardiopulm onary arrest

left Ashley in a severely compromised medica l condition. Ash ley

was unable to perform any activities of daily living and was

unable to stand, speak, walk , eat, or see.

1 3 . Following her discharge from the second hospital,

Ashley required continuous care. S he was under a nurseÓs care

for 12 hours a day, and AshleyÓs mother (Anna Patricia Delgado)

cared for her during the remaining 12 hours each day.

1 4 . On February 23, 2011, Ashley died due to complications

resulting from the hypoxic brain injury.

1 5 . Ashley was survived by her parents, Ms . Delgado and

John Nunez.

16 . Medicaid (through AHCA) paid $357,407.05 for the

medical care related to AshleyÓs injury .

1 7 . AshleyÓs parents paid $5,805.00 for her funeral.

1 8 . As the Personal Represe ntative of AshleyÓs Estate,

Ms. Delgado brought a w rongful death action against the first

emergency room doctor who treated Ashley, the pediatrician, a

pediatric critical care intensivist who treated Ashley after her

admission to the first hospital , the two hospitals that treated

Ashley, and the ambulance company that transported Ashley to the

second hospital.

19. AHCA received notice of the wrongful death action and

asserted a Medicaid lien against AshleyÓs Estate in order to

recover the $357,407.05 paid for AshleyÓs past medical expenses.

See § 409.91 0(6)(b), Fla. Stat. ( providing that Ð[b]y applying

for or accepting medical assistance, an applicant, recipient, or

legal representative automatically assigns to [AHCA] an y right,

title, and interest such person has to any third party

benefit . . . .Ñ).

20 . Ms. Delgado ultimately settled the wrongful death

action through a series of confidential settlements totaling

$2,250,000. No portion of that settlement represents

reimbursements for future medical expenses.

21. AHCA has n ot moved to set aside , vo id, or otherwise

dispute those settlements.

22. Section 409.910(11)(f) sets forth a formula for

calculating the amount that AHCA shall recover in the event that

a Medicaid recipient or his or her personal representative

initiates a tort action against a third party that results in a

judgment, award, or settlement from a third party.

23. Applying the formula in section 409.910(11)(f) to the

$2,250,000 settlement , results in AHCA being owed $791,814.84 in

order to satisfy its lien. 2/

24. B ecause Ash leyÓs medical expenses of $357,407.05 were

less than the amount produced by the section 409.910(11)(f)

formula, AHCA is seeking to recover $357,407.05 in satisfaction

of its Medicaid lien. See § 409.910(11)(f) 4 . , Fla. Stat.

(providing that Ð[n]otwithstand ing any provision in this section

to the contrary, [AHCA] shall be entitled to all medical

coverage benefits up to the total amount of medical assistance

provided by Medicaid.Ñ).

Valuation of the Personal Injury Claim

25. Tomas Gamba represented Petitio ners during their

wrongful death action .

26. Mr. Gamba has practiced law since 1976 and is a

partner with Gamba, Lombana and Herrera - Mezzanine, P.A. , in

Coral Gables, Florida.

27. Mr. Gamba has been Board Cert ified in Civil Trial Law

by the Florida Ba r since 1986. Since the mid - 1990s, 90 percent

of Mr. GambaÓs practice has been devoted to medical malpractice.

Over the course of his career, Mr. Gamba has handled 60 to

70 jury trials as first chair, including catastrophic injury

cases involving childre n.

28. In 2015, the Florida Chapter of the American Board of

Trial Advocates named Mr. Gamba its Trial Lawyer of the Year.

29. Mr. Gamba is a member of several professional

organizations , such as the American Board of Trial Advocates,

the American Asso ciation for Justice, the Florida Board of Trial

Advocates, the Florida Justice Association, and the Miami - Dade

County Justice Association.

30 . Mr. Gamba was accepted in this proceeding as an expert

regarding the valuation of damages suffered by injured parties.

31 . Mr. Gamba testified th at Petitioners elected against

proceeding to a jury trial (in part) because of the familyÓs

need for closure and the s tress associated with a trial that

could last up to three weeks .

32 . Mr. Gamba also noted that the two hospitals that

treated Ashley had sovereign immunity, and (at the time

pertinent to the instant case) their damages were capped at

$200,000 each . In order to collect any damages above the

statutory cap, Petitioners would have had to file a claims bil l

with the Florida Legislature, and Mr. Gamba testified that Ðthe

legislature would be very difficult.Ñ

33 . As for the three treating physicians who were

defendants in the suit, Mr. Gamba testified that Petitioners

achieved a favorable settlement by agr eeing to accept $ 2 million

when the physiciansÓ combined insurance coverage was only

$3 million .

34 . The decision to settle was also influenced by the fact

that Ashley had a pre - existing condition known as hemolytic

uremic syndrome, a blood disorder. Dur ing discovery, Mr. Gamba

learned that the defense was prepared to present expert

testimony that the aforementioned condition made it impossible

for the defendants to save Ashley.

35 . Finally, Mr. Gamba testified that 75 percent of

medical malpractice ca ses heard by jur ies result in defense

verdicts.

36. As for whether the $2,250,000 settlement fully

compensated AshleyÓs estate and her parents for the full value

of their damages, Mr. Gamba was adamant that the aforementioned

sum was Ða small percentag e of what we call the full measure of

damages in this particular case.Ñ

37. Mr. Gamba opined that $8,857,407.05 was the total

value of the damages that AshleyÓs parents and her Estate could

have reasonably expected to recover if the wrongful death actio n

had proceeded to a jury trial.

38. Mr. Gamba explained that FloridaÓs Wrongful Death Act

enabled AshleyÓs parents to recover for the death of their child

and for the pain and suffering they incurred from the date of

AshleyÓs injury. According to Mr. G amba, $4,250,000 represented

a ÐconservativeÑ estimate of each parentÓs individual claim , and

the sum of their claims would be $8,500,000 .

39. Mr. Gamba further explained that AshleyÓs EstateÓs

claim would consist of the $357,407.05 in medical expenses paid

by Medicaid , result ing in an estimate for total damages of

$8,857,407.05.

40. Mr. GambaÓs opinion regarding the value of

PetitionersÓ damages was based on Ð roundtable Ñ discussions with

members of his firm and discussions with several attorneys

outs ide his firm who practice in the personal injury field .

41. Mr. GambaÓs opinion was also based on 10 reported

cases contained in PetitionersÓ Exhibit 9 . According to

Mr. Gamba, each of those reported cases involve fact patterns

similar to that of the ins tant case. Therefore, Gamba testified

that the jury verdicts in those cases are instructive for

formulat ing an expectation as to what a jury would have awarded

if AshleyÓs case had proceeded to trial.

42. In sum, Mr. Gamba testified that the $2,250,000

settlement r epresents a 25.4 percent recovery of the

$8,857.407.05 of damages that AshleyÓs parents and AshleyÓs

Estate actually incurred. Therefore, only 25.4 percent (i.e,

$90,781.30) of the $357,407.05 in Medicaid payments for AshleyÓs

care was recove red.

43. Mr. Gamba opined that allocating $90,781.39 of the

total settlement to compensate Medicaid for past medical

expenses would be reasonable and rational. In doing so, he

stated that, ÐAnd I think both Î if the parents are not getting

their full m easure of damages, I donÓt think the health care

provider, in this case Medicaid, that made the payment should

get, you know, every cent that they paid out, when mother and

father are getting but a small percentage of the value of their

claim.Ñ

44. Pet itioners also presented the testimony of Herman J.

Russomanno.

45. Mr. Russomanno has practiced law since 1976 and is a

senior partner with the Miami law firm of Russomanno and

Borrello, P.A. Mr. Russomanno has been Board Certified in Civil

Trial Law b y the Florida Bar since 1986 , and he has served as

the Chairman of the Florida BarÓs Civil Trial Certification

Committee. Mr. Russomanno is also certified in Civil Trial

Practice by the National Board of Trial Advocates and has taught

trial advocacy and e thics for 33 years as an adjunct professor

at the St. Thomas University School of Law .

46. Mr. Russomanno is a past president of the Florida Bar

and belongs to several professional organizations , such as the

Florida Board of Tri a l Advocates, the America n Board of Trial

Advocates, the Dade County Bar Association, and the Miami - Dade

County Trial Lawyers Association.

47. Since 1980, Mr. RussomannoÓs practice has been focused

on medical malpractice, and he has represented hundreds of

children who suffer ed catastrophic injuries.

48. Mr. Russomanno was accepted in the instant case as an

expert in the evaluation of damages suffered by injured parties.

49. Prior to his test imony at the f inal h earing,

Mr. Russomanno reviewed AshleyÓs medical records, th e hospital

discharge summaries, and the Joint Pre - h earing Stipulation filed

in this proceeding. He also d iscussed AshleyÓs case with

Mr. Gamba and reviewed Mr. GambaÓs file from the wrongful death

action.

50. Mr. Russomanno also viewed videos of Ashley taken

before and after her injury so he could gain an understanding of

the severity of AshleyÓs injury and the suffering experienced by

her parents.

51. Mr. Russomanno credibly testified that the damages

incurred by AshleyÓs parents w ere between $4,250 ,000 and

$7,500,000 for each parent.

52. Mr. Russomanno echoed Mr. GambaÓs testimony by stating

that the $2,250,000 settlement did not fully compensate AshleyÓs

parents and her Estate for their damages.

53. AHCA presented the testimony of James H.K. Br uner.

54. Mr. Bruner has practiced law since 1983 and is

licensed to practice law in Florida, New York, Maine, and

Massachusetts.

55. Mr. Bruner is a member of professional organizations

such as the American Health Lawyers Association and the Trial

L awyers Sections of the Florida Bar.

56. Between 2003 and 2005, Mr. Bruner served as the

Department of Children and FamiliesÓ risk attorney. That

position required him to evaluate personal injury actions filed

against the Department and assess the Depar tmentÓs exposure to

liability.

57. Based on his experience in evaluating approximately

200 cases for the Department, Mr. Bruner authored the

DepartmentÓs manual on risk management and provided training to

Department employees on risk management issues.

58. Mr. Bruner has served as the Director of AHCAÓs Bureau

of Strategy and Compliance. In that position, he dealt

specifically with third - party liability collections and Medicaid

liens.

59. Beginning in 2008, Mr. Bruner worked for ACS (now

known as Xerox Recovery Services) and was engaged in attempting

to recover Medicaid liens from personal injury settlements .

60. Over the last several years , Mr. Bruner has spoken at

seminars about Medicaid lien resolution and authored

publications on that topic.

61. Since April of 2013, Mr. Bruner has been in private

legal practice as a solo practitioner. He describes himself as

a Ðjack of all tradesÑ who engages in a Ðgeneral practice.Ñ

62. Over the last 20 years, Mr. Bruner has not handled a

jury trial inv olving personal injury ; and , over the last four

years, he has n ot negotiated a personal injury settlement.

63. The undersigned accepted Mr. Bruner as an expert

witness for evaluating the cases contained in PetitionersÓ

Exhibit 9 and pointing out distinc tions between those cases and

the instant case.

64. Mr. Bruner did not offer testimony regarding the

specific value of the damages suffered by Petitioners.

Findings Regarding the Testimony Presented at the Final Hearing

65. Regardless of whether the reported cases in

PetitionersÓ Exhibit 9 are analogous to or distinguishable from

t he instant case, the undersigned finds that the testimony from

Mr. Gamba and Mr. Russomanno was compelling and persuasive.

While attaching a value to the damages that a pl aintiff could

reasonabl y expect to receive from a jury is not an exact

science, Mr. Gamba and RussomannoÓs substantial credentials and

their decades of experience with litigating personal injury

lawsuits make them very compelling witnesses regarding the

va luation of damages suffered by injured parties such as

Petitioners .

66. Accordingly, t he und ersigned finds that

Petitioners proved by clear and convincing evidence that

$ 90,781.39 constitutes a fair and reasonable recovery for past

medical expenses actual ly paid by Medicaid. However , and as

discussed below, AHCA (as a matter of law) is entitled to

recover $357,407.05 in satisfaction of its Medicaid lien . 3/

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case pursuant to sections 120.569, 120.57 ( 1) and 409.910(17),

Florida Statutes.

68. AHCA is the agency authorized to administer FloridaÓs

Medicaid program. § 409.902, Fla. Stat.

69. The Medicaid program Ðprovide[s] federa l financial

assistance to States that choose to reimburse certain costs of

medical treatment for needy persons.Ñ Harris v. McRae , 448 U.S.

297, 301 (1980).

70. ÐThe Medicaid program is a cooperative one. The

Federal Government pays between 50 percent a nd 83 percent of the

costs a state incurs for patient care. In return, the State

pays its portion of the costs and complies with certain

statutory requirements for making eligibility determinations,

collecting and maintaining information, and administerin g the

program.Ñ Estate of Hernandez v. A g. for Health Care Admin. ,

190 So. 3d 139 , 141 - 42 (Fla. 3 rd DCA 2016) (internal citations

omitted) .

71. Though participation is optional, once a State elects

to participate in the Medicaid program, it must comply with

federal requirements. Harris , 448 U.S. at 301.

7 2 . O ne condition for receipt of federal Medicaid funds

requires states t o seek reimbursement for medical expenses

incurred on behalf of Medicaid recipients , 4/ who later recover

from l egally liable thir d parties. See Ark. Dep't of Health &

Human Servs. v. Ahlborn , 547 U.S. 268, 276 (2006). See also

Estate of Hernandez , 190 So. 3d at 142 (noting that one such

requirement is that Ðeach participating state implement a third

party liability provision which requires the state to seek

reimbursement for Medicaid expenditures from third parties who

are liable for medical treatment p rovided to a Medicaid

recipient Ñ ).

7 3 . Consistent with this federal requirement, the Florida

Legislature enacted section 409.91 0 , designated as the ÐMedicaid

Third - Party Liability Act , Ñ whi ch authorizes and requires the

s tate to be reimbursed for Medicaid funds paid for a recipient's

medical care when that recipient later receives a personal

injury judgment, award, or settlement f rom a third party.

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

2009). See also Davis v. Roberts , 130 So. 3d 264, 266 (Fla. 5 th

DCA 2013)(stating that in order Ð[t]o comply with federal

directives the Florida legislature enacted sect ion 409.910,

Florida Statutes, which authorizes the State to recover from a

personal injury settlement money that the State paid for the

plaintiffÓs medical care prior to recovery.Ñ).

7 4 . Section 409.910(1) sets forth the Florida

LegislatureÓs clear inten t that Medicaid be repaid in full for

medical care furnished to Medicaid recipients by provid ing that:

It is the intent of the Legislature that

Medicaid be the payor of last resort for

medically necessary goods and services

furnished to Medicaid recipient s. All other

sources of payment for medical care are

primary to medical assistance provided by

Medicaid. If benefits of a liable third

party are discovered or become available

after medical assistance has been provided

by Medicaid, it is the intent of th e

Legislature that Medicaid be repaid in full

and prior to any other person, program, or

entity. Medicaid is to be repaid in full

from, and to the extent of, any third - party

benefits, regardless of whether a recipient

is made whole or other creditors paid .

Principles of common law and equity as to

assignment, lien, and subrogation are

abrogated to the extent necessary to ensure

full recovery by Medicaid from third - party

resources. It is intended that if the

resources of a liable third party become

availa ble at any time, the public treasury

should not bear the burden of medical

assistance to the extent of such resources.

7 5 . In addition, t he Florida Legislature has authorized

AHCA to recover the monies paid from any third party, the

recipient, the provid er of the recipientÓs medical services, and

any person who received the third - party benefits 5/ :

(7) The agency shall recover the full

amount of all medical assistance

provided by Medicaid on behalf of the

recipient to the full extent of third -

party benefit s.

(a) Recovery of such benefits shall be collected

directly from:

1. Any third party;

2. The recipient or legal representative,

if he or she has received third - party

benefits;

3. The provider of a recipientÓs medical

services if third - party benefits have

been recovered by the provider;

notwithstanding any provision of this

section, to the contrary, however, no

provider shall be required to refund or

pay to the agency any amount in excess

of the actual third - party benefits

received by the provider from a th ird -

party payor for medical services

provided to the recipient; or

4. Any person who has received the third -

party benefits.

See § 409.910(7), Fla. Stat.

76. AHCAÓs efforts to recover the full amount paid for

medical assistance is facilitated by se ction 409.910(6)(a),

which provides that AHCA :

[I] s automatically subrogated to any rights

that an applicant, recipient, or legal

representative has to any third - party

benefit for the full amount of medical

assistance provided by Medicaid. Recovery

pursua nt to the subrogation rights created

hereby shall not be reduced, prorated, or

applied to only a portion of a judgment,

award, or settlement, but is to provide full

recovery by the agency from any and all

third - party benefits. Equities of a

recipient, his or her legal representative,

a recipientÓs creditors, or health care

providers shall not defeat, reduce, or

prorate recovery by the agency as to its

subrogation rights granted under this

paragraph.

See also § 409.910( 6)(b)2 . , Fla. Stat. (providing tha t AHCA Ðis

a bona fide assignee for value in the assigned right, title, or

interest, and takes vested legal and equitable title free and

clear of latent equities in a third person. Equities of a

recipient, the recipientÓs legal representative, his or her

creditors, or health care providers shall not defeat or reduce

recovery by the agency as to the assignment granted under this

paragraphÑ).

77. AHCA Ós efforts are also facilitated by the fact that

AHCA has Ðan automatic lien for the full amount of medic al

assistance provided by Medicaid to or on behalf of the recipient

for medical care furnished as a result of any covered injury or

illness by which a third party is or may be liable, upon the

collateral, as defined in s. 409.901.Ñ £ 409.910( 6)(c), Fla.

S tat.

7 8 . Th is Medicaid lien is iron - clad. For example, section

409.901(13) provides that no settlement impairs the lien:

No action of the recipient shall prejudice

the rights of the agency under this section.

No settlement, agreement, consent decree,

trust agreement, annuity contract, pledge,

security arrangement, or any other device,

hereafter collectively referred to in this

subsection as a Ðsettlement agreement,Ñ

entered into or consented to by the

recipient or his or her legal representative

shall impair the agencyÓs rights. However,

in a structured settlement, no settlement

agreement by the parties shall be effective

or binding against the agency for benefits

accrued without the express written consent

of the agency or an appropriate order of a

c ourt having personal jurisdiction over the

agency.

79 . F ederal law gives living Medicaid recipien ts

protection from the Medicaid lien. 42 U.S.C. § 1396p(a)(1) , the

Ðanti - lien statute , Ñ provides that Ð[n]o lien may be imposed

against the property of any individual prior to his death on

account of medical assistance paid or to be paid on his behalf

under the State plan,Ñ except under limited circumstances.

(emphasis added).

8 0 . However, that protection does not extend to the estate

of a Medicaid rec ipient or to a beneficiary in a wrongful death

action. As recently explained by the Fourth District Court of

Appeal in Goheagan v. Perkins , 197 So. 3d 112, 120 (Fla. 4 th DCA

2016) :

The plain language of section

1396p(a)(1) clearly reflects Congress'

inten t that the anti - lien statute apply only

to recoveries by Medicaid recipients who

are living when the settlement or judgment

against the third party is obtained, and not

to recoveries made by an estate or

beneficiary in a wrongful death action. The

anti - li en statute does not apply to preempt

the state statute in all cases, and thus

does not prohibit a state from imposing a

lien against the deceased recipient's

recovery from third parties for the full

amount paid for medical expenses.

(emphasis in or iginal).

8 1 . As for why Congress may have chosen to limit the anti -

lien statuteÓs protection to living Medicaid recipients, the

Goheagan court opined that :

We can envision several valid reasons why a

different recovery framework might be

applied to a su rvival action as opposed to a

wrongful death action. In a survival

action, the need to provide greater

protection to a Medicaid recipient's

personal assets could be based upon a desire

to maximize the recipient's available assets

received from third parti es available to pay

non - medical or other needs. This would

further a legitimate government interest by

allowing such recipients to keep more of

their property, including any payments from

third parties received during their

lifetime, with the goal of help ing them

maintain their standard of living as long as

possible without the need to rely on

additional forms of public assistance. Such

concerns do not apply when assets or third

party payments are received by an estate or

its beneficiaries rather than by a

living person.

Also, while a recipient is still alive, they

may incur unexpected or uncovered medical

expenses in the future. Allowing recipients

to keep more unencumbered property increases

the likelihood that those needs can be met

from the recipient' s available resources.

Upon death, a recipient no longer incurs

medical or non - medical expenses, and the

amount of expenditures will be fixed.

The plain wording of the anti - lien statute

evinces Congress' intent to protect the

needs of living Medicaid reci pients rather

than various third parties. By allowing

states to recover these expenditures,

Congress also clearly intended to protect

the public fisc over any derivative

interests that might inure to the benefit of

estates, beneficiaries, or survivors of a

decedent. As the Court has stated in the

past, the judiciary's "task is to give

effect to the will of Congress, and where

its will has been expressed in reasonably

plain terms, 'that language must ordinarily

be regarded as conclusive.'" Griffin v.

Ocea nic Contractors, Inc. , 458 U.S. 564,

570, 102 S. Ct. 3245, 73 L. Ed. 2d

973 (1982) ( quoting Consumer Prod. Safety

CommÓn v. GTE Sylvania, Inc. , 447 U.S. 102,

108, 10 0 S. Ct. 2051, 64 L. Ed. 2d

766 (1980)) . Our decision today gives

effect to Congress' will , in which the

state's financial resources were clearly a

major consideration, just as they are for

stat e courts on such issues as well .

Goheagan , 197 So. 3d at 121 - 22.

8 2 . The amount to be recovered by AHCA from a judgment,

award, or settlement from a t hird party is determined by the

formula in section 409.910(11)(f). Ag. for Health Care Admin.

v. Riley , 119 So. 3d 514, 515 n.3 (Fla. 2d DCA 2013).

8 3 . Section 409.910(11)(f) provides:

Notwithstanding any provision in this

section to the contrary, in the event of an

action in tort against a third party in

which the recipient or his or her legal

representative is a party which results in a

judgment, award, or settlement from a third

party, the amount recovered shall be

distributed as follows:

1. After at torneyÓs 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 agencyÓs

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 percent o f the judgment, award, or

settlement.

4. Notwithstanding any provision of this

section to the contrary, the agency shall

be entitled to all medical coverage

benefits up to the total amount of

medical assistance provided by Medicaid.

For purposes of this paragraph, Ðmedical

coverageÑ means any benefits under health

insurance, a health maintenance

organization, a preferred provider

arrangement, or a prepaid health clinic,

and the portion of benefits designated

for medical payments under coverage for

worker sÓ compensation, personal injury

protection, and casualty.

8 4 . In the instant case, applying the formula in section

409.910(11)(f) to the $2,250,000 settlement results in AH C A

being owed $791,814.84 in order to satisfy the lien. However,

because AshleyÓ s medical expenses of $357,407.05 were less than

the $791,814.84, AHCA is seeking to recover $357,407.05 in

satisfaction of its Medicaid lien. See § 409.910(11)(f)4 . , Fla.

Stat.

8 5 . As noted above, section 409.910(6)(a) and (b)2 . ,

prohibit s the Medicai d lien from being reduced because of

equitable considerations. However, when AHCA has not

participated in or approved a settlement, the administrative

procedure created by section 409.910(17)(b) serves as a means

for determining whether a lesser portion o f a total recovery

should be allocated as reimbursement for medical expenses in

lieu of the amount calculated by application of the formula in

section 409.910(11)(f).

8 6 . Section 409.910(17)(b) provides, in pertinent part,

that :

A recipient may contest th e amount

designated as recovered medical expense

damages payable to the agency pursuant to

the formula specified in paragraph (11)(f)

by fili ng a petition under chapter

120 within 21 days after the date of

payment of funds to the agency or after the

date o f placing the full amount of the

third - party benefits in the trust account

for the benefit of the agency pursuant to

paragraph (a) . . . . In order to

successfully challenge the amount payable

to the agency, the recipient must prove, by

clear and convinci ng evidence, that a

lesser portion of the total recovery should

be allocated as reimbursement for past and

future medical expenses than the amount

calculated by the agency pursuant to the

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

that Medicaid provided a l esser amount of

medical assistance than that asserted by

the agency.

(emphasis added).

87 . Section 409.910(17)(b) thus makes clear that the

formula set forth in subsection (11) constitutes a default

allocation of the amount of a settlement that i s attri butable to

medical costs and sets forth an administrative procedure for

adversarial testing of that allocation. See Harrell v. State ,

143 So. 3d 478, 480 (Fla. 1st DCA 2014)( stating that petitioner

Ðshould be afforded an opportunity to seek the reduction of a

Medicaid lien amount established by the statutory default

allocation by demonstrating, with evidence, that the lien amount

exceeds the amount recovered for medical expensesÑ ) .

8 8 . However, the plain language of section 409.910(17)(b)

clearly indicate s that this administrative procedure for

determining whether a lesser portion of a total recovery should

be allocated as reimbursement for medical expenses in lieu of

the amount calculated by applic ation of the formula in

section 409.910(11)(f) , is only av ailable to Ða recipient.Ñ

See § 409.910(17)(b), Fla. Stat. (providing that Ð[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 ) Ñ). See also Lee Cnty . Elec. Coop. v.

Jacobs , 820 So. 2d 297, 303 (Fla. 2002)(stating that Ð[w]hen a

statute is clear and unambiguous, courts will not look behind

the statuteÓs plain language for legislative intent or resort to

rules of statutory construction to ascertain intent.Ñ).

8 9 . This conclusion is supported by the fact that the

Florida Legislature expressly made section 409.910(17)(a)

applicable to people other than the Medicaid recipient. See

§ 409.910(17)(a), Fla. Stat. (providing that Ð [a] recipient or

his or her legal representative or any person representing, or

acting as agent for, a recipient or the recipientÓs legal

representative , who has notice, excluding notice charged solely

by reason of the recording of the lien pursuant to paragraph

(6)(c), or who h as actual knowledge of the agencyÓs rights to

third - party benefits under this section, who receives any third -

party benefit or proceeds for a covered illness or injury, must,

within 60 days after receipt of settlement proceeds, pay the

agency the full amou nt of the third - party benefits, but not more

than the total medical assistance provided by Medicaid, or place

the full amount of the third - party benefits in an interest -

bearing trust account for the benefit of the agency pending an

administrative determina tion of the agencyÓs right to the

benefits under this subsection. Ñ) (emphasis added) .

90 . ÐIt is a general canon of statutory construction that,

when the legislature includes particular language in one section

of a statute but not in another section of t he same statute, the

omitted language is presumed to have been excluded

intentionally.Ñ State v. E.M. , 141 So. 3d 682 , 685 (Fla. 4 th

DCA 2014)( concluding that Ð[t] he legislature specifically

mentioned the two methods for a student to qualify for a

potenti al waiver of discipline, but in describing the scenario

in which a student's statements become inadmissible, the

legislature referred only to the scenario in which the

information divulged leads to the arrest and conviction of the

person who supplied the c ontrolled substance, which would be

someone other than the student. Therefore, the plain meaning of

the statute indicates that students who would qualify for a

potential waiver of discipline under method two (admitting to

his or her own unlawful possessio n or use of drugs) do not

receive the same protection (inadmissibility of incriminating

statements) as students who would qualify under method one

(giving information that leads to the a rrest and conviction of

another . Ñ) ) .

91 . Because Ashley is deceased and neither Ms. Delgado nor

Mr. Nunez is a Ð recipientÑ within the meaning of c hapter 409,

the administrative procedure for determining whether a lesser

portion of a total recovery should be allocated as reimbursement

for medical expenses in lieu of the am ount calculated by

application of the formula in section 409.910(11)(f) is not

available in the instant case.

92. Also, given that PetitionersÓ $2,250,000 settlement

amounts to a Ðthird - party benefit , Ñ within the meaning of

section 409.901(28) , and secti on 409.910(7), empowers AHCA to

recover third - party benefits from Ð[a]ny person who has re ceived

the third - party benefits , Ñ AHCA is thus entitled to recover all

of the $357,407.05 paid for AshleyÓs past medical expenses.

9 3 . Similar results were recently reached by the Third and

Fourth District Courts of Appeal in cases involving deceased

Medicaid recipients. See Goheagan , 197 So. 3d at 122 (holding

that Ðthe trial court correctly ruled that AHCA is entitled to

recover the full amount of its Medicaid lien because the federal

Medicaid ActÓs anti - lien statute applies only to living Med icaid

recipients Ñ); Estate of Hernandez , 190 So. 3d at 145 (holding

that in cases where a Medicaid lien is imposed against a

wrongful death settlement , a personal representativ e does not

have the right to allocate the settlement funds in a manner that

causes AHCA to receive less than the full amount of its

expenditures for medical assistance).

94 . While this outcome may seem inequitable, the Florida

Legislature has clearly in dicated that equity cannot serve as a

basis for reducing the Medicaid lien. See § 409.910(6)(a) &

(6)(b)2 . , Fla. Stat.

95 . Also, the undersign ed is not at liberty to

rewrite section 409.910, in order to reach a desired result.

See generally State v. J ett , 626 So. 2d 691, 693 (Fla. 1993)

( stating Ð[w]e agree with the majority below that this language

is unambiguous. It is a settled rule of statutory construction

that unambiguous language is not subject to judicial

construction, however wise it may seem to alter the plain

language. While the dissentÓs view below has much to commend

it, we find that the decision whether or not to engraft that

view into the Florida Statutes is for the legislature. We trust

that if the legislature did not inten d the resul t mandated by

the statuteÓs plain language, the legislature itself will amend

the statute at the next opportunity.Ñ ); Weber v. Dobbins ,

616 So. 2d 956, 959 - 60 (Fla . 1993)( explaining that Ð[t]he reason

for the rule that courts must give statutes their plain and

ordinary meaning is that only one branch of government may write

laws. Just as a governor who chooses to veto a bill may not

substitute a preferable enactment in its place, courts may not

twist the plain wording of statutes in order to achieve

partic ular results. Even when courts believe the legislature

intended a result different from that compelled by the

unambiguous wording of a statute, they must enforce the law

according to its terms. A legislature must be presumed to mean

what it has plainly e xpressed, and if an error in interpretation

is made, it is up to the legislature to rewrite the statute to

accurately reflect legislative intent.Ñ)(Barkett, C.J.,

dissenting)(citations omitted). 6 /

ORDER

Consistent with the above Findings of Fact and Con clusions

of Law, it is hereby

ORDERED that the Agency for Health Care Administration is

entitled to $ 357 , 407 . 05 in satisfaction of its Medicaid lien.

DONE AND ORDERED this 30 th day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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 Cl erk of the

Division of Administrative Hearings

this 30 th day of November , 2016 .

ENDNOTE S

1/ Unless stated otherwise, all statutory references will be to

the 20 1 6 version of the Florida Statutes.

2/ AHCA determined that $103,870.32 of the costs incu rred in

litigating the wrongful death action were taxable costs for

purposes of the section 409.910(11)(f) calculation.

3/ As discussed in the Conclusions of Law section, t he

undersigned concludes that Petitioners cannot utilize the

administrative proce dure in section 409.910(17)(b ) for

determining whether a lesser portion of a total recovery should

be allocated as reimbursement for medical expenses . If that

conclusion is ultimately appealed and reversed, then a remand

will be unnecessary given the unde rsignedÓs finding that

$90,781.39 constitutes a fair, reasonable, and accurate share of

the total recovery for past medical expenses actually paid by

Medicaid

4/ Section 409.901(19 ) defines ÐMedicaid recipientÑ or

ÐrecipientÑ as Ð an individual whom the Department of Children

and Families, or, for Supplemental Security Income, by the

Social Security Administration, determines is eligible, pursuant

to federal and state law, to receive medical assistance and

related services for which the agency may make p ayments under

the Medicaid program. For the purposes of determining third -

party liability, the term includes an individual formerly

determined to be eligible for Medicaid, an individual who has

received medical assistance under the Medicaid program, or an

individual on whose behalf Medicaid has become obligated. Ñ

5/ Section 409.901 (28 ) defines Ðthird - party benefit , Ñ in

pertinent par t, as Ðany benefit that is or may be available at

any time through contract, court award, judgment, settlement,

agreement , or any arrangement between a third party and any

person or entity, including, without limitation, a Medicaid

recipient, a provider, another third party, an insurer, or the

agency, for any Medicaid - covered injury, illness, goods, or

services, including co sts of medical services related thereto,

for personal injury or for death of the recipient . . . .Ñ

6 / T he dispute in the instant case has focused on section

409.910(17)(b), and the aforementioned subsection was added

during the 2013 legislative sessi on. See Ch. 2013 - 150, Fla.

Stat. (2013). However, even if the instant case were to be

governed by the law in effect prior to the 2013 amendment,

Goheagan and Estate of Hernandez indicate that the outcome of

the instant case would be the same.

COP IES FURNISHED:

Alexander R. Boler, Esquire

Xerox Recovery Services

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

(eServed)

John Cofield

Xerox Recovery Services

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

(eServed)

Justin Senior, Interim Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, Gen eral Co unsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Kim Kellum , Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this f inal o rder is

entitled to judicial review p ursuant to section 120.68, Florida

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 Admin istrative Hearings within

30 days 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 resides or as otherwise provided by law.