16-002182 Monica Cronin vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Thursday, August 18, 2016.

Summary: The Petitioner failed to prove medical necessity, or that she was entitled to coverage for certain mental health coverage benefits for her daughter. As a result, the Division's denial of her Level II appeal was warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONICA CRONIN,

Petitioner,

vs. Case No. 16 - 2182

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE,

Respondent.

_______________________________/

RECOMMENDED ORD ER

This case was heard before Administrative Law Judge

Robert L. Kilbride of the Division of Administrative Hearings,

via video teleconference on June 15, 2016, with sites in Miami

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Monica T. Cronin , E squire , pro se

7255 Southwest 108th Terrace

Miami, Florida 33156

For Respondent: Brittany B. Griffith, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The threshold issue in the case is whether Respondent ' s

denial of Petitioner ' s Level II appeal concerning partial

hospitalization coverage ("PHP") for her daughter, M . S . , should

be upheld.

PRE LIMINARY STATEMENT

On December 11, 2015, New Directions, which manages

behavioral health care services on behalf of Florida Blue, sent

the patient, M.S. ( "the pat i ent" or "M.S.") , a letter notifying

her of its decision to deny continued payment or treatmen t for

her at the partial hospitalization level of care.

Nonetheless, the patient and her family chose to have her

continue at the partial hospitalization level of care from

December 11, 2015 , through approximately February 9, 2016.

Petitioner ' s insurer, Fl orida Blue, subsequently denied

payment of the partial hospitalization coverage expenses incurred

by Petitioner for M.S. from December 11, 2015 , through

February 9, 2016.

Petitioner appealed this denial to Respondent by filing a

Level II appeal.

By letter dated February 9, 2016, Respondent notified

Petitioner that after reviewing the matter, her Level II appeal

was denied. Petitioner thereafter filed a request for a formal

administrative hearing.

A s request ed , Respondent submitted the dispute to the

Divisi on of Administrative Hearings on April 19, 2016, which

conducted a final hearing before the undersigned A dministrative

L aw J udge on June 15, 2016.

During the hearing, Petitioner testified on her own behalf.

Respondent presented the live testimony of sever al witnesses:

Dr. John Emerick, Kathy Flippo, Jessica Bonin , and Tarra Adams.

Exhibits 1 through 21 were offered by Respondent. All these

exhibits, with the exception of 7 and 21, were admitted by

stipulation. (Petitioner objected to Respondent ' s Exhibi ts 7

and 21, and they were not admitted.) Petitioner offered

Exhibits 1 and 2, both of which were admitted.

A T ranscript of the hearing was filed on July 21, 2016.

Petitioner and Respondent filed p roposed r ecommended o rders ,

which were reviewed and consi dered in the preparation of this

Recommended Order.

References to Florida Statutes are to the 2015 version,

unless otherwise indicated.

FINDING S OF FACT

The undersigned makes the following finding s of material,

relevant , and probative facts:

Findings of Fa ct F rom Parties ' Pre - h earing Stipulation of Fact

and Law F iled June 14, 2016

1. On December 11, 2015, New Directions sent the patient a

letter.

2. New Directions is Florida Blue ' s subcontractor and third

party administrator for the purpose of mental hea lth coverage

reviews and authorizations.

3. The patient continued at the partial hospitalization

level of care after December 11, 2015.

4. At some time between December 11, 2015, and December 16,

2015, Petitioner, Monica Cronin , submitted a Level I a ppea l.

5. On January 13, 2014, Ms. Cronin filed a timely Level II

a ppeal.

6. At all times material hereto, the patient was subject to

either the 2015 or 2016 State Employee s ' PPO Plan documents.

7. On March 3, 2016, Respondent, Department of Management

Serv ices, Division of State Group Insurance , received a timely

request for a formal hearing and request for external review by

an independent review organization ("IRO") from Petitioner .

8. At all times material hereto, the " medical necessity "

determination w as subject to the 2015 or 2016 Medical Necessity

Criteria from New Directions.

9. At all times material hereto, the patient and Petitioner

were members of the State Employee s ' PPO Plan.

10. Respondent is the state agency charged with

administering the st ate employee health insurance program

pursuant to section 110.123, Florida Statutes.

Findings of Fact F rom Hearing

11. Petitioner is a State of Florida employee and was

insured through the State of Florida. The patient, M.S. , is

Petitioner ' s adult child who was eligible for coverage under

Petitioner ' s health insurance.

1 2 . As general background, M.S. suffers from an eating

disorder commonly known as anorexia nervosa with comorbid

depression and anxiety. P et. E x. 2 . During the relevant time

period , M.S . was approximately 21 years of age.

1 3 . From approximately September 24, 2015 , through

November 24, 2015, M.S. was admitted and involved in residential,

in - patient treatment at the Oliver Pyatt Center for her eating

disorder. This residential inpatient treatment was approved and

covered by Florida Blue for that period of time.

14. However, in a letter dated November 24, 2015, New

Directions informed the patient that continuation of her

" Residential Care - - Psych (1001) " was not medically necessary and

wou ld be discontinued. This determination was made, in part,

based on the review and evaluation of her medical records by

Dr. Lawrence Erlich, a board - certified psychiatrist employed by

an IRO . Re sp . Ex. 4, p . 6 of 29 .

1 5 . Shortly thereafter, however, New Direction s changed its

position and approved M.S. for a " step down " or reduced level of

care described as PHP through December 11, 2015. 1/

16. P HP was authorized for this limited period of time

because , although the patient ' s vital signs were stable and t he

patient had started to participate in group therapy, there were

still family concerns and some non - compliance with treatment.

Additionally, New Directions wanted to make sure that the patient

was able to portion at least some of her food and continue t o

show stability. R esp. E x. 9, p. 131 .

17. Dr. John Emerick testified on behalf of Respondent to

explain his involvement and medical opinion concerning the

patient ' s diagnosis, treatment, prognosis , and issues raised by

Petitioner ' s appeals - - namely, the medical necessity of continued

PHP for M.S. after December 11, 2015.

18. Dr. Emerick is a licensed medical doctor in the s tate

of Florida. He specializes and is board - certified in general

psychiatry by the American Board of Psychiatry and Neurology.

Pet itioner stipulated that Dr. Emerick is an expert in the area

of psychiatry. 2/

19 . Dr. Emerick has approximately 15 years in the field of

" utilization management " and has been a medical director for New

Directions since 2011. 3/ In his position as one of t he senior

medical directors at New Directions, Dr. Emerick oversees

utilization management decisions for the Florida Blue account,

which includes the State of Florida ' s State Employees ' PPO Plan.

20. Since M.S. ' s approval for PHP was for a limited period

of time and a service request had been made, a review and

evaluation of her need for continued PHP was undertaken by New

Directions. This also included a referral and independent review

by Dr. Michael Cesta , a board - certified psychiatrist employed by

Pres t and Associates Inc., an IRO.

21. Dr. Emerick testified that as of December 11, 2015 ,

criteria 6 of the Eating Disorder Partial Hospitalization

Continued Stay Criteria was not met. In his medical opinion, PHP

was no longer necessary to treat the patient ' s sym ptoms as of

December 11, 2015.

2 2 . Dr. Emerick explained that an evaluation of criteria 6

cannot be based on one particular symptom, such as self -

portioning or body weight, but must be based on " the overall

complex symptomatology , " which included a variety of different

medic al, health , and social factors.

2 3. Dr. Emerick testified that , on December 10, 2015 , he

relied upon a variety of factors to conclude that PHP was no

longer medically necessary for M.S. The clinical information

suggested that th e patient was stable, " had continued to gain

weight, " and had made progress with self - feeding.

24 . Furthermore, on December 10, 2015, the patient was at

99 percent of her ideal body weight.

25 . On December 10, 2015, the patient was also " plating

[the pat ient ' s] own food for snacks and breakfast " and had been

self - portioning meals without losing weight since the end of the

pati ent ' s residential treatment.

26. There was also a decrease in the patient ' s non -

compliance with treatment as of December 10, 2015 , that

Dr. Emerick felt was important.

27. These conclusions and medical opinions by Dr. Emerick

concerning M.S. ' s mental and health condition as of December 11,

2015 , were based on, and supported by, a series of findings and

observations documented in New Direction s' " Contact Notes " dated

December 10 and 11, 201 5. Resp . Ex. 9, p. 143.

28. More specifically, the Contact N otes (repeated

verbatim) dated December 11, 2015 , state the following details:

Based on the available clinical information,

Michael Cest a, M.D. has determined that the

clinical information provided does not meet

the NDBH Medical Necessity Criteria, Quality

of Care Requirements, I n the opinion of this

reviewer, based on the New Directions Eating

Disorder Partial Hospitalization Criteria -

EDP H for the mental health/eating disorder

partial hospitalization level of care,

medical necessity would not be met as of

12/11/15 , based on Continued Stay Criteria 5

and 6. The patient is 100% of her ideal body

weight, is progressing appropriately,

partici pating in treatment, compliant with

her meal plan and stable. There is no

indication the patient has laboratory

abnormalities, EKG abnormalities, hemodynamic

instability, or any other significant

findings. The patient has a supportive home

environment an d there is no indication that

the patient would deteriorate if monitored

outside of 30 Î 40 hours a week. The patient

has progressed appropriately, clearly

regained her weight, and the issues

surrounding body image and urges to restrict

will be present for an extended time frame

and have to be addressed in a less

restrictive setting of an outpatient

environment. I nformed Melanis NDBH is

denying payment for cont stay at EDPH

services beginning 12/10/15.

29. The C ontact N otes dated December 10, 2015 , state in

pertinent part :

Member completed 60 days at EDR and step - down

to EDPH on 11/24/15, . . . IBW 99% no medical

problems, vital [ signs ] normal, has improved

psychiatrically, no more self - cutting

behavior, no SI, no psychosis, is medication

compliant, no beh aviors that could prevent

her from continuing TX [ treatment ] at

LLOC [ . ] [4/]

30 . The denial of coverage by New Directions on

December 11, 2015 , for continued PHP commenced a series of

appeals by Petitioner in an effort to secure continuation of the

PHP co verage for her daughter.

3 1. Concomitantly, Petitioner ' s appeal triggered an

additional review of M.S. ' s mental health condition by other

medical professionals, including two separate reviews by Prest

and Assoc iates Inc.

32 . The renewed evaluation , conce rning whether M.S. needed

the PHP level of care after December 11, 2015 , focused again on

whether or not PHP was " medically necessary " for her m ental

health and medical needs .

33. At this juncture, it is useful to review the terms and

definitions applied by the medical professionals evaluating this

question.

A pplicable Plan Documents

34. The insurance plan and other relevant documents

outlined the criteria and standards to determine whether a

particular medical or mental health treatment was " medically

ne cessary . "

35. More specifically, several provisions from the

following documents are pertinent:

I. State Employees ' PPO Plan

Mental Health and Substance Dependency

Services

Physician office visits, I ntensive O utpatient

T reatment, I npatient and P artial

H ospitalization and R esidential T reatment

S ervices are covered based on medical

necessity.

* * *

Section 15: Definitions

Intensive Outpatient Treatment . . .

Treatment in which an individual receives at

least three (3) clinical hours of

institu tional care per day (24 - hour period)

for at least three ( 3 ) days a week and

returns home and/or is not treated as an

inpatient during the remainder of th at 24 -

hour period .

Medically necessary . . . s ervices required

to identify or treat the I llness, injur y,

C ondition, or M ental and N ervous D isorder a

D octor has diagnosed or reasonably suspects.

The service must be:

1. c onsistent with the symptom, diagnosis

and treatment of the patient ' s C ondition;

2. i n accordance with standards of good

medical practi ce;

3. r equired for reasons other than

convenience of the patient or the D octor;

4. a pproved by the appropriate medical body

or board for the I llness or injury in

question; and

5. a t the most appropriate level of medical

supply, service, or care that can be safely

provided.

The fact that a service, prescription drug,

or supply is prescribed by a D octor does not

necessarily mean that the service is

M edical ly Necessary. Florida Blue,

CVS/c aremark, and DSGI determine whether a

service, prescription dru g, or supply is

M edically N ecessary.

* * *

Partial h ospitalization . . . Treatment in

which an individual receives at least six ( 6 )

clinical hours of institutional care per day

(24 - hour period) for at least five ( 5 ) days

per week and returns home and/or is not

treated as an inpatient during the remainder

of the 24 - hour period. [ 5 /]

Resp . Ex . 1, p p. 26, 76 - 77 .

II. New Directions, Medical Necessity Criteria 2015

Medical Necessity

New Directions defines "Medical Necessity" or

Medically Necessary" as health care services

rendered by a provider exercising prudent

clinical judgment, which are:

A. Consistent with:

1. The evaluation, diagnosis, prevention,

treatment or alleviation of symptoms of an

illness, disease or injury defined by the

current Diagnostic and Statistical Manual of

Mental Disorders (DSM ) [.]

2. Generally accepted standards of medical

practice, as defined by credible scientific

evidence published in peer - reviewed medical

literature, which are generally recognized by

the appropriat e medical community, Physician

Specialty Society recommendations and other

relevant factors [.]

B. Clinically appropriate and designed to

meet the individualized needs of the patient

with regard to type, frequency, extent, site

and duration of services [.]

C. Reasonably expected to improve symptoms

associated with the patient's illness,

disease, injury or deficits in functioning [.]

D. Provided at the least restrictive and

most clinically appropriate service or level

of care to safely, effectively, and

e fficiently meet the needs of the patient [.]

E. Required for reasons other than the

convenience of the patient, family/support

system, physician or other health care

provider [.]

F. Not a substitute for non - treatment

services addressing environmental fac tors [.]

G. Not more costly than an alternative

service or services, which are at least as

likely to produce equivalent diagnostic or

therapeutic results for the patient's

illness, disease or injury[.]

* * *

Eating Disorder Partial Hospitalizati on

Criteria

* * *

Continued Stay Criteria EDPH [6/]

Must meet all of the following :

* * *

5. There is documentation of member progress

towards treatment goals. If the member is

not progressing appropriately or if the

member ' s conditi on has worsened, evidence of

active, timely reevaluation and change of the

treatment plan to address the current needs

and stabilize the symptoms necessitating the

admission.

6. Despite intensive therapeutic efforts,

this level of care is necessary to tr eat the

intensity, frequency and duration of current

behaviors and symptoms.

Resp . Ex. 10 , pp. 4, 44 - 45 .

36 . Based on the more persuasive and compelling evidence at

the hearing, the factual dispute centered on whether or not

criteria 6 was satisfied, and whether, despite intensive

therapeutic efforts, M .S. needed PHP to treat the intensity,

frequency , and duration of her current behaviors and symptoms.

37 . As previously mentioned, as a part of the appeal

process pursued by Petitioner, several medical pro fessionals were

called to review the initial determination by New Directions that

PHP was not medic ally necessary for the patient.

3 8 . Prest and Associates Inc. is an IRO that provides

physician review services. Dr. Michael Cesta performed an

independent " non - appeal " review of the patient ' s clinical

information for Prest and Associates Inc . Resp. E x. 13.

3 9 . Dr. Cesta found in his comprehensive Review Report

dated December 11, 2015, that medical necessity was not met for

the PHP level of care for M.S. R esp. E x. 13, p. 18.

40. In support of this conclusion, Dr. Cesta found that , as

of December 11, 2015 , the patient was at 100 percent of the

patient ' s ideal body weight, was appropriately eating the

patient ' s meal plan, had no abnormalities in labs or vit als, and

was medically stable. R esp. E x. 13, p. 18. Additionally, the

patient had a supportive family, was attending meetings and

groups, and was participating in treatment. R esp. E x. 13,

p. 18.

41 . Shortly thereafter, Dr. Lawrence Erlich, another

inde pendent reviewer for Prest and Associates Inc. , conducted a

separate, " expedited appeal " review. In his December 15, 2015 ,

Review Report , he also concluded that PHP should be denied for

similar reasons as stated in Dr. Cesta ' s report. R esp. E x. 14,

p p . 2 - 3.

4 2 . Dr. Emerick agreed with Dr. Cesta ' s and Dr. Erlich ' s

findings and relied upon them in making his determination that

M.S. did not qualify for coverag e for PHP .

4 3 . The denial for PHP was also upheld by another doctor at

New Directions. On April 1 3, 2016, as a part of the standard

appeal after discharge, Dr. Randy Rummler also concluded that PHP

was not medically necessary. R esp. E x. 9, p p . 157 - 159.

4 4 . At Petitioner's request and as permitted by the plan

documents, a n external review by another independent medical

organization was also completed in this case. 7/

4 5 . In a report dated April 6, 2016 , the external reviewer,

Medical Consultant ' s Network ( " MCN " ), also upheld Respondent ' s

decision to deny coverage of the patient ' s PHP after Decem ber 11 ,

201 5 . P et. E x. 2. 8/

4 6 . MCN ' s report stated, in relevant part:

This request is not recommended for approval,

given the information provided, as it is

noted that on 12/11/15, she had no type of

objectively noted behavioral problems due her

[ sic ] ED or a ny MH problems, nor did she have

any type of ED/medical problems, that would

have needed, for any reasons, continued 24

hour care, supervision, observati on,

management or containment. On 02/08/16, it

is noted that the treatment team has not

provided any c linical information indicating

the objective medical need for this request

and therefore it is not recommended for

approval.

P et. E x. 2, p. 2.

4 7 . Upon a Level II appeal to Respondent, Kathy Flippo, a

licensed nurse in the s tate of Florida, reviewed the claim at

issue on behalf of Respondent .

4 8 . Ms. Flippo noted that the patient had achieved the

patient ' s normal body weight, was stable physically and mentally,

had normal vital signs, had improved psychiatrically, had no more

self - cutting behavior, and " no behaviors that would prevent [the

patient] from continuing treatment at [a] lower level of care. "

Based on these findings, Ms. Flippo found that criteria 6 of the

Eating Disorder Partial Hospitalization Contin ued Stay Criteria

was not met.

49. Based o n the definitions of Intensive Outpatient

Treatment (" IOP ") and PHP care found in the State Employees' PPO

Plan document, both methods of treatment involve clinical hours

of institutional care at the facility. The primary difference

between the two progra ms is that there are more hours and days

per week with PHP ( six hours a day/ five days a week) versus IOP

( three plus hours a day/ three days a week).

50. Based on the benefit structure of Petitioner ' s

insurance plan, pre - authorization for IOP for M.S. was not

required. As a result, Petitioner could have sought IOP

T reatment for M.S. between December 11, 2015 , and February 9,

2016 ; submitted those claims ; and had them paid.

51. With substantial changes to their work and family

schedules, Petitioner and her family would have been capable of

utilizing IOP T reatment.

52. Likewise, based on the totality of the persuasive

testimonial and documentary evidence presented, as well as the

medical opinions of several medical doctors and psychiatrists,

M.S. would have been able to participate in and benefi t from IOP

T reatment.

53. Nonetheless, Petitioner decided to keep M.S. in PHP at

her own expense to e nsure, in her mind, her daughter ' s physical

safety, since Petitioner felt M.S. was i ncapable of caring for

herself.

54. In addition, the famil y decided to keep M . S . in the PHP

program based on the medical advice of the health care providers

at the Oliver Pyatt Center.

55. The undisputed evidence revealed that the cost of PHP

per day at the Oliver Pyatt Center was $80 0.00 , and the cost of

IOP Treatment per day was $300.00.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

57. Section 110.123(5) , ti tled " State Group Insurance

Plan , " outlines the powers and duties of Respondent . The statute

assigns responsibility and grants authority to Respondent to

render final decisions on matters of enrollment, the existence of

coverage, or covered benefits under the S tate G roup I nsurance

Plan .

58. The crux of the issue in this case is whether PHP was

medically necessary for Petitioner ' s daughter ' s eating disorder

after December 11, 2015 .

59. Absent a different statutory standard, the general rule

is that the bu rden 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. 1st DCA 1981);

Balino v. Dep ' t o f HRS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977).

The general rule applies to this case.

60. Here, as the party asserting the right to payment o f

her coverage claim under the p lan, Petitioner had the initial

burden of demonstrating by a preponderance of th e evidence that

PHP for her daughter ' s condition was covered under the p lan. 9 /

61. If applicable, the burden then shifts to Respondent to

establish that Petitioner ' s claim for PHP is excluded from

coverage under some term of the policy. Herrera v. C.A. S eguros

Catatumbo , 844 So. 2d 664, 668 (Fla. 3d DCA 2003); State

Comprehensive Health Ass ' n v. Carmichael , 706 So. 2d 319, 320

(Fla. 4th DCA 1997).

62. As a legal backdrop, it is useful to outline several

principles of contract law which may apply. Insura nce contracts

are to be construed in accordance with the plain language of the

policy, with any ambiguity construed against the insurance

company, 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. Blu e

Cross & Blue Shield of Fla., Inc. , 988 So. 2d 654 (Fla. 4th DCA

2008).

63. Insurance policy exclusionary clauses that are

ambiguous or otherwise susceptible of more than one meaning must

be liberally construed in favor of the covered employee and

strict ly against the insurance company. State Farm Mut. Auto

Ins. Co. v. Pridgen , 498 So. 2d 1245 (Fla. 1986) ; Harnett v.

Southern Ins. Co. , 181 So. 2d 524 (Fla. 1965) .

64. A mbiguity is not necessarily present in an insurance

policy or plan simply because an a nalysis is required to

interpret or understand the policy. A mbiguity exists in an

insurance policy when its terms make the policy subject to

different reasonable interpretations, one for coverage and one

for exclusion. Traveler ' s Ins. Co. v. Gayfer ' s & C o., Inc. , 366

So. 2d 1199 (Fla. 1st DCA 1979) ; Blue Shield of Fla., Inc. v.

Woodlief , 359 So. 2d 883 (Fla. 1st DCA 1978) .

65. In this case, no material arguments have been raised or

advanced by either party that any of the applicable terms or

definitions are ambiguous or susceptible of different

interpretations. The undersigned agrees.

66. Rather, the central issue is a factual one. Whether

the evidence adduced at the hearing proves that continued PHP was

required as a " medical necessity " for M.S. ' s con dition as of

December 11, 2105? More specifically, despite intensive

therapeutic efforts, was this level of care necessary to treat

the intensity, frequency , and duration of M.S. ' s current

behaviors and symptoms ?

67 . In this case, after carefully reviewi ng and weighing

all the evidence, Petitioner has not established by a

preponderance of the evidence that (1) her claim for PHP

qualified for coverage or that (2) PHP was medically necessary

for M.S. as of December 11, 2015.

68. More particularly, despite presenting in September 2015

with stark and debilitating symptoms of her eating disorder, M.S.

made remarkable and well - documented progress over the next

several months.

69. Her progression of recovery from her eating disorder

was consistent and steady. The destructive behaviors associated

with her eating disorder that plagued M.S. , in September 2015,

were markedly alleviated and reduced by December 11, 2015.

70. M.S. had progressed from residential inpatient therapy

to PHP . She was ready, in the medica l opinions of several

doctors and psychiatrists, for a reduced level of care. P HP was

no longer medically necessary. Dr. Emerick aptly summed up

M.S. ' s progress by characterizing it as " a little atypical, which

is she has really done pretty well . "

71. T o conclude that PHP was medically necessary for M.S.

after December 11, 2015, would require the undersigned to ignore

an overwhelming, and essentially undisputed, amount of medical

and psychiatric evidence which concluded otherwise.

72. In the absence of any credible and persuasive medical

evidence to support the medical necessity of continued PHP after

December 11, 2015, the uniform and consistent conclusions of

several medical doctors and psychiatrists, carr y the day.

73. There were no less than five we ll - informed mental

health professionals who concluded that PHP was not medically

necessary. They included Drs. Emerick, Cesta, Erlich , and

Rummler and a registered nurse, Ms. Flippo. This conclusion was

also supported by MCN, an IRO.

74. Further, the co ncept of medical necessity for a certain

type of treatment resulting in coverage by the insurance plan

should not be confused with the distinctly different concept of

following the medical advice, preference , or direction of your

doctor. Stated differentl y, " the fact that a service,

prescription drug, or supply is prescribed by a doctor does not

necessarily mean that the service is medically necessary.

Florida Blue, CVS \\ Caremark, and DSGI determine whether a service,

prescription drug, or supply is medica lly necessary. " See Resp.

Ex . 1, definition of medical necessity, p . 76.

75. This is also explained in New Directions Medical

Necessity Criteria 2015. The pamphlet explains " New Directions

makes determinations of medical necessity for benefit

determinat ion purposes only. The treating provider, in

collaboration with the member, is responsible for any treatment

decisions regarding the initiation or continuation of a specific

service. " R esp. E x. 10, p. 5.

76. Despite Petitioner ' s decision to keep M.S. in PHP, it

is inexplicable that the medical professionals at New Directions

did not actively encourage Petitioner to utilize IO P Treatment

for M.S. 10 /

77. Based on the evidence presented and the normal

progression of therapy for this type of eating disorder , the

undersigned finds that IOP Treatment would have been a logical

choice and the most appropriate mental health course of action

immediately after December 11, 2015.

78. Under these unique and compelling facts, the

undersigned concludes that an appropr iate recommendation to

Respondent is twofold: (1) The agency ' s decision to deny the

Level II appeal should be upheld ; and (2) Petitioner should

recover and be reimbursed for the daily, out - of - pocket cost of

what IOP Treatment from December 11, 2015 , throu gh February 8,

2016 , would have cost her . 11/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Management

Services, Division of State Group Insurance, enter a final order

denying Petitio ner ' s Level II appeal and also direct ing that

Petitioner be reimbursed for what the daily, out - of - pocket cost

to her of I ntensive O utpatient Treatment for M.S. would have been

for those services from December 11, 2015 , through February 8,

2016.

DONE AND EN TERED this 18th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

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 18th day of August , 2016 .

ENDNOTE S

1/ On November 25, 2015, New Directions authorized the patient to

receive ten days of treatment at the PHP level of care. R esp.

E x. 9, p. 122. On December 4, 2015, New Directions approved

seven additional days of PHP for the patient because New

Directions wanted to make sure the patient was stable enough to

move down to a low er level of care.

2/ Petitioner noted, however, that she did not stipulate that he

is "independent . "

3/ "Utilization management" involves making determinations as to

whether clinical information presented allows for the approval of

requested services, applying and using the medical necessity

criteria. See also Resp. Ex. 12.

4/ The evidence revealed that throughout her stay at Oliver Pyatt

Center, M.S. had a team of medical professionals, including

psychiatrists, treating her and monitoring her progre ss. These

detailed progress or C ontact N otes were kept over a series of

several months.

5/ This was the level of care sought by Petitioner for M.S. after

December 11, 2015.

6/ Since M.S. had been admitted to the PHP program for limited

days in Novembe r and December 2015, and her continued stay in the

PH P program was under evaluation, criteria 5 and 6 in this

section were the focus of consideration by the medical

professionals reviewing Petitioner's request.

7/ An external review is conducted by an in dependent reviewer who

is board - certified in the field at question. The external

reviewer decides whether an appeal should be upheld and the prior

decision overturned. If the external review organization

determines that an appeal should be granted and ov erturned, that

decision is binding on the plan, which means the plan must pay

for the services in question.

8/ Although the reviewer's name is not clear from the record, the

review by MCN was conducted by a "board certified psychiatrist."

9 / The proper analysis in this case also includes the question of

whether PHP was "medically necessary" for her daughter based on

her diagnosis and condition .

10 / It would hardly be fair to characterize Petitioner's

decision to keep M.S. in PHP as "voluntary , " in lig ht of her

understandable concern for M.S., particularly when the undisputed

evidence showed that the psychiatric team at Oliver Pyatt Center

had recommended that M.S. remain in PHP. I t would be mo re

accurate to characterize Petitioner's decision to keep M .S. in

PHP as compelled by the circumstances of her daughter's condition

on December 11, 2015. However, this is not the test or the

standard the undersigned is charged to use.

11/ This recommendation is supported by evidence revealing that

IOP Treatment was the next step after PHP and appeared to be

supported by the medical staff at New Directions.

COPIES FURNISHED:

Monica T . Cronin , Esquire

7255 Southwest 108th Terrace

Miami, Florida 33156

(eServed)

Brittany B. Griffith, Esquire

Department of Manag ement Services

4050 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, S ui te 160

Tallahassee, Florida 32399 - 0950

(eS erved)

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 Fin al Order in this case.