16-003408MTR Patrick Osmond vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Thursday, September 8, 2016.

Summary: Petitioner proved by clear and convincing evidence that the portion of its third-party recovery attributable to past medical expenses as allowed by the Medicaid anti-lien statute was available for reimbursement of Respondent's Medicaid lien.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK OSMOND ,

Petitioner,

vs. Case No. 1 6 - 3408 MTR

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

/

FINAL ORDER

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

on August 11, 2016 , in Tallahassee , Florida , before E. Gary

Early, a designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Shaun M . Cummings, Esquire

Chad K. Florin, Esquire

Florin Roebig, P.A.

777 Alderman Road

Palm Harbor, Florida 34683

For Respondent: Alexander R. Boler, Esquire

Xerox Recovery Services Group

2073 Summit Lake Drive , Suite 300

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 (Respondent

or A HCA ) , for medical expenses paid on behalf of Petitioner,

Patrick Osmond (Petitioner) , from settlement proceeds received

by Petitioner from third part ies.

PRELIMINARY STATEMENT

On June 20 , 201 6 , Petitioner filed a Petition to Determine

Amount Payable to Agency for Health Care Administration in

Satisfaction of Medicaid Lien , by which he challenged AHCA Ós

lien for recovery of medical expenses paid by Medicaid in the

amount of $303, 757.77 . The basis for the challenge was the

assertion that the application of section 409.910(17) (b) ,

Florida Statutes (2013), warranted reimbursement of 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) .

T he final hearing was scheduled for August 11, 2016 . On

August 9, 2016, the case was transferred to the undersigned.

Thereafter, 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 proof

would be necess ary. The stipulated facts have been accepted and

considered in the preparation of this Final Order.

At the final hearing, the parties presented argument on a

stipulated record and facts. PetitionerÓs Exhibits 1 through 4,

6, and 7, and RespondentÓs Ex hibit 1 were received into

evidence.

The hearing was not transcribed . Petitioner timely filed

his Proposed Final Order . Respondent filed its Proposed Final

Order on August 22, 2016, the date due, but after 5:00 p.m. ,

thus appearing on the docket as having been filed on August 23,

2016. Respondent filed a Motion to Treat Proposed Final Order

as Timely Filed , which is hereby granted. Both of the proposed

orders have been duly considered in the preparation of this

Final Order.

All citations are to th e 201 6 Florida Statutes , except as

otherwise indicated.

FINDINGS OF FACT

1 . Petitioner was injured in a single - vehicle collision

after he and several underage friends were served alcoholic

beverages at an ApplebeeÓs restaurant, owned by Neighborhood

Restaurant Partners , LLC (ApplebeeÓs) .

2. As a result of his injuries, Petitioner brought suit

against ApplebeeÓs, for dram shop liability, and against Joseph

Raub, the driver of the vehicle in which Petitioner was a

passenger, for negligence.

3. The Complaint also included a claim against the

bartender from ApplebeeÓs, however, she was eventually dropped

from the lawsuit .

4. After a two - week jury trial, the j ury returned a

verdict in favor of Petitioner, awarding a total of

$41,956,473.73 in damage s, allocated as follows:

a. Past Medical Expenses: $436,473.73

b. Future Medical Expenses: $15,000,000.00

c. Past Lost Wages: $20,000.00

d. Future Loss of Earning Capacity: $1,500,000.00

e. Past Non - Economic D amages: $5,000,000.00

f. Futur e Non - Economic D amages: $20,000,000.00

5 . The past medical expenses included $303,757.77 for

payments made by Medicaid through AHCA, $13,985.96 for payments

administered through the Rawlings Company, and $118,730 .00 which

represent ed an outstanding bill from PetitionerÓs neurosurgeon.

6. After the verdict, Petitioner reached a settlement

agreement with ApplebeeÓs , whereby ApplebeeÓs agreed to pay the

sum of $4,300,000.00 to Petitioner.

7. As a condition of the settlement with Apple beeÓs, the

parties executed a Release that included the following language:

1.6 The parties agree that Patrick OsmondÓs

damages have a total value of $41,956,473.73

(Forty - One Million, Nine Hundred Fifty - Six

Thousand, Four Hundred Seventy - Three Dollars

and Seventy - Three Cents), of which

$317,743.73 (Three Hundred Seventeen

Thousand, Seven Hundred Forty - Three Dollars

and Seventy - Three Cents) [ 1 / ] represents the

past medical expenses paid for by Medicaid.

Given the facts, circumstances and nature of

Patrick OsmondÓs injur ies and this

settlement, $35,568 .73 (Thirty - Five

Thousand, Five Hundred Sixty - Eight Dollars

and Seventy - Three Cents) of this settlement

has been allocated to Patrick OsmondÓs claim

for past medical expenses paid by Medicaid

and the re mainder of the settlement has been

allocated toward the satisfaction of claims

other than past medical expenses paid by

Medicaid.

8. After the j ury verdict was rendered, Petitioner

recovered $25,000.00 in settlement from Joseph Raub and his

insurers.

9. As a condition of the settlement with Mr. Raub, the

parties executed a Release that included the following language:

The parties agree that Patrick OsmondÓs

damages have a total value of $41,956,473.73

(Forty - One million, Nin e Hundred Fifty - Six

Thousa nd, Four Hundred Seventy - Three Dollars

and Seventy - Three Cents), of which

$317,743.73 (Three Hundred Seventeen

Thousand, Seven Hundred Forty - Three Dollars

and Seventy - Three Cents) represents the past

medical expenses paid for by Medicaid.

Given the facts, circumstances and nature of

Patrick OsmondÓs injuries and this

settlement, $190.43 (One Hundred ninety

Dollars and Forty - Three Cents) of this

settlement has been allocated to Patrick

OsmondÓs claim for past medical expenses

paid by Medicaid and the remain der of the

settlement has been allocated toward the

satisfaction of claims other than past

medical expenses paid by Medicaid.

10 . After the verdict, Petitioner Ós insurer, Geico General

Insurance Company (ÐGeicoÑ) , paid its policy limits of

$10,000.00 to Petitioner under his Uninsured and/or Underinsured

Motorist Coverage. The documentary evidence did not reflect

that payment, but its existence was acknowle d ged by both parties

during the argument , a nd is accepted as a stipulation . The

purpose for the payment was not disclosed. T he burden in this

case is on Petitioner to prove Ð that a lesser portion of the

total recovery should be allocated as reimbursement for past and

future medical expenses . Ñ There is no proof that the Geico

settlement should be excluded from the amount available to

satisfy the Medicaid lien.

11 . The $303,757.77 in Medicaid funds paid by AHCA is the

maximum amount that may be recovered by AHCA .

12 . There was no evidence to suggest that statutory

conditions precedent to AHCA asserting its claim or Petitioner

bringing this action were not met. The Pre - hearing Stipulation,

RespondentÓs s tatement , the stipulation of facts, and the

st atement of i ssues of f act that remained to be litigated ,

indicate clearly that the issue of allocation of the settlement

proceeds under sections 409.910 (11)(f) and 409.910(17)(b) were

the only issues in dispute remaining for disposition.

13 . There was no evidence that the monetary figure agreed

upon by the parties represented anything other than a reasonable

settlement. There was no evidence of any manipulation or

collusion by the parties to minimize the share of the settlement

proceeds attributable t o past medical expenses for PetitionerÓs

medical care . However, an issue remains as to the correct

amount of Ðpast medical expensesÑ to be used in establishing the

proportional amount of those expenses v í s - a - v í s the total

settlement.

14 . No portion of t he $ 303,757.77 paid by AHCA through the

Medicaid program on behalf of Petitioner represented

expenditures for future medical expenses, with all amounts

reflected in its Provider Processing System Report being for

past medical expenses incurred.

C ONCLUSIONS OF LAW

15 . 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.

16 . AHCA is the agency authorized to administer FloridaÓs

Medicaid program. § 409.902, Fla. Stat.

17 . The Medicaid program Ðprovide[s] federal 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). Though participation is optional, o nce a State

elects to participate in the Medicaid program, it must comply

with federal requirements governing the same. Id.

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

s tates are required to seek reimbursement for medical expenses

incurred on behalf of Medicaid recipients wh o later recover from

legally liable third parties . See Ark. Dep't of Health & Human

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

19 . Consistent with this federal requirement, the Florida

Legislature has enacted section 409.910 , which authorizes and

requires the State 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 from a third

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

5th DCA 2009). The statute create s a n automatic lien on any

such judgment , award, or settlement for the medical assistance

provided by Medicaid. § 409.910(6)(c) , Fla. Stat .

20 . The statutory formula for calculating the lien is

established as one - half of the settlement proceeds after

attorney fees (calculated at 25 percent of the judgment, award,

or settlement) and taxable costs are subtracted , up to the full

lien amount . § 409.910(11)(f) , Fla. Stat.; see also Ag. f or

Health Care Admin. v. Riley , 119 So. 3d 514, 515 n . 3 (Fla. 2d

DCA 2013).

21 . Section 409.910(1) establishes the primacy of

repayment to Medicaid for medical assistance paid by Medicaid,

and provides that:

It is the intent of the Legislature that

Medicaid be the payor of last resort for

medically necessary goods and services

fur nished to Medicaid recipients. 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 Medi caid, it is the intent of the

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 w hole 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 liabl e third party become

available at any time, the public treasury

should not bear the burden of medical

assistance to the extent of such resources.

22 . A s a condition of providing Medicaid funds, the state

of Florida is placed in a priority position for recovery of all

funds expended, as expressed in section 409.910(6)(a), which

provides that:

The agency is automatically subrogated to

any rights that an applicant, recipient, or

legal representative has to any third - party

benefit for the full amount of med ical

assistance provided by Medicaid. Recovery

pursuant 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 a ll

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.

2 3 . AHCA is not automatically bound by any allocation of

damages set forth in a settlement between a Medicaid recipient

and a third party that may be contrary to the formulaic amount .

§ 409.910(13), Fl a. Stat. (ÐNo action of the recipient shall

prejudice the rights of the agency under this section.

No . . . Ò settlement agreement, Ó entered into or consented to by

the recipient or his or her legal representative shall impair

the agencyÓs rights.Ñ) ; s ee also § 409.910(6)(c)7., Fla. Stat.

(ÐNo release or satisfaction of any . . . settlement agreement

shall be valid or effectual as against a lien created under this

paragraph, unless the agency joins in the release or

satisfaction or executes a release of the lien.Ñ).

24 . I n cases as thi s , where AHCA has not participated in

or approved the settlement, the administrative procedure created

by section 409.910(17)(b) is the means for determining whether a

lesser portion of a total recovery should be allocated as

reimbursement for medical expe nses in lieu of the amount

calculated by application of the formula in section

409.910(11)(f).

25 . Section 409.910 (17) (b) provide s , in pertinent part,

that

A recipient may contest the amount

designated as recovered medical expense

damages payable to the agency pursuant to

the formula specified in paragraph (11)(f)

by filing a petition under chapter 120

within 21 days after the date of payment of

funds to the agency or after the date of

placing the full amount of the third - party

benefits in the trust account for the

benefit of the agency pursuant to paragraph

(a) . . . . In order to successfully

challenge the amount payable to the agency,

the recipient must pr ove, by clear and

convincing 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 lesser amount of medical assistance than

that asserted by the agency.

26 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt .ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof:

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence

requires that the evidence must be

found to be credible; the facts to

which the witnesses testify must be

distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in

confusion as to the facts in issue.

The evidence must be of such weight

that it produces in the mind of the

trier of fact a firm belief or

convicti on, without hesitancy, as to

the truth of the allegations sought

to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

Ð Although [the clear and convincing] standard of proof may be

met where the evidence is in conflict, it seems to preclude

evidence that is ambiguous. Ñ Westinghouse Elec . Corp. v. Shuler

Bros. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

Geico Proceeds

27 . ÐThird - party benefits for medical services shall be

primary to medical assistance provided by Medicaid.Ñ

§ 409.910(3) , Fla. Stat .

28 . The terms Ðthird - party,Ñ and Ðthird - party benefitÑ are

defined in section 409.901 as follows:

(27) ÐThird partyÑ means an individual,

entity, or program, excluding Medicaid, that

is, may be, could be, should be, or has been

liable for all or part of t he cost of

medical services related to any medical

assistance covered by Medicaid. A third

party includes a third - party administrator

or a pharmacy benefits manager.

(28) ÐThird - party benefitÑ means any

benefit that is or may be available at any

time t hrough 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 Medic aid - covered

injury, illness, goods, or services,

including costs of medical services related

thereto, for personal injury or for death of

the recipient, but specifically excluding

policies of life insurance on the recipient,

unless available under terms of the policy

to pay medical expenses prior to death. The

term includes, without limitation ,

collateral, as defined in this section,

health insurance, any benefit under a health

maintenance organization, a preferred

provider arrangement, a prepaid health

cl inic, liability insurance, uninsured

motorist insurance or personal injury

protection coverage , medical benefits under

workers୉ compensation, and any obligation

under law or equity to provide medical

support. (emphasis added).

29 . Furthermore, section 409.910(11)(f)4. provides that

AHCA is entitled to Ðall medical coverage benefits , Ñ including

Ð the portion of benefits designated for medical payments under

coverage for . . . personal injury protection .Ñ

30 . The uninsured motorist payment to Petitioner of

$10,000.00 is available for medical coverage, and is subject to

the A HCAÓ s reimbursement rights.

Proof as to Reimbursement for Past Medical Expenses

31 . A settlement agreement does not dictate, but may

inform, th e administrative determination of the appropriate

portion of the recovery subject to reimbursement to AHCA .

Mobley v. Ag. for Health Care Admin. , Case No. 13 - 4785MTR, FO at

33 (Fla. DOAH Mar. 2, 2016).

32 . The Medicaid lien was accounted for in the Release s

and made subject to Ðan allocation between medical and

nonmedical damages -- in the form of either a jury verdict, court

decree, or stipulation binding on all parties,Ñ a process

approved in Wos v . E.M.A. , 528 U.S. ___ , 2013 U.S. LEXIS 2372

*18 (2013).

33 . The Releases limited the amount of past medical

expenses to that amount actually paid by AHCA. However,

Medicaid is a priority lien , that Ð 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 .

(emphasis added). § 409.910(1), Fla. Stat. Thus, the full

amount of past medical expenses as calculated by the jury,

$436,473.73, is the amount to be applied to the formula in

calculating that portion of the settlement that is available for

reimbursement of the Medicaid lien.

Reimbursement from Future Medical Expense Settlement Proceeds

34 . The jury calculated that future medical expenses

needed over the course of PetitionerÓs life will amount to

$15,000,000.00. If that amount is applied to the calculation of

Ðmedical expensesÑ from which the Medicaid lien may be paid

under the formula in section 409.910(11)(f), the full amount of

the $303.757.77 lien c ould be reimburs ed .

35 . The undersigned recognizes the split in DOAH Final

Orders regarding the extent to which a Medicaid lien may be

recovered from portions of a settlement reserved for future

medical expenses , in addition to those allocated to recovery for

past medical expenses. That split was ably described by

Administrative Law Judge F. Scott Boyd in Mobley v. Ag. for

Health Care Admin. , Case No. 13 - 4785MTR, FO at 36 n .4 (Fla. DOAH

Mar. 2, 2016).

36 . The debate over the limits on recovery from settlement

proceeds allocated to future medical expenses under the Medicaid

anti - lien statute is not limited to administrative law judges at

the Florida DOAH, but is one that is being engaged nationwide.

See, e.g. , Lewis v. W. Va. Dep't of Health & Human Res. (In re

E.B.) , 729 S.E.2d 270, 305 - 306 (W. Va. 2012)(Davis, J.,

concurring). 2 /

37 . Among the issues posed in this case is whether the

state Medicaid lien for reimbursement of medical expenses

authorizes not only reimbursement from that portion of a third -

party recovery fairly attributable to past medical expenses, but

also authorizes reimbursement from funds allocated for other

classes of damages, including future medical expenses. For the

rea sons set forth herein, the undersigned concludes it cannot.

Federal Anti - lien Statute

38 . Notwithstanding the public policy favoring recovery to

the state for Medicaid assistance, the federal Medicaid anti -

lien statute, 42 U.S.C. § 1396p(a)(1), limits the scope of said

recovery, and 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 .Ñ

39 . In Ark ansas Dep artment of Health and Human Serv ice s v.

Ahlborn , 547 U.S. 268 (2006), the Supreme Court addressed the

extent of recovery from a third - party settlement under a

Medicaid lien, in ligh t of the Medicaid anti - lien statute. In

that case, the Medicaid recipient, Ms. Ahlborn , filed suit for

injuries sustained in an automob ile accident, in which she

sought damages for past medical costs ; future medical expenses;

permanent physical injury ; past and future pain, suffering, and

mental anguish; past loss of earnings and working time; and

permanent impairment of the ability to ea rn in the future.

Ark. Dep't of Health & Human Servs. v. Ahlborn , 547 U.S. at 272 .

The total value of Ms. AhlbornÓs damages was estimated at

$ 3,040,708.12. The past medical costs paid by Medicaid and

subject to the Medicaid lien totaled $215,645.30.

40 . Ms. Ahlborn settled her lawsuit for $550 , 000.00 , of

which $35,581.47 was attributable to Ðmedical expenses.Ñ 3 /

41 . The Supreme Court posed the question as one in which

Ð[w]e must decide whether ADHS can lay claim to more than the

portion of Ahlborn's settlement that represents medical

expenses . Ñ

42 . To facilitate reimbursement from liable third parties,

states participating in Medicaid must provide:

[T] o the extent that payment has been made

under the State plan for medical assistance

in any case where a third party has a legal

liability to make payment for such

assistance, the State has in effect laws

under which, to the extent that payment has

been mad e under the State plan for medical

assistance for health care items or services

furnished to an individ ual, the State is

considered to have acquired the rights of

such individual to payment by any other

party for such health care items or

services.

42 U .S.C. § 1396 a (a)(25)(H).

43 . The Supreme Court identified th e following provisions

of the Medicaid anti - lien statute, 42 U.S.C. § 1396p , as being

pertinent to its decision :

(a) Imposition of lien against property of

an individual on account of medical

assistance rendered to him under a State

plan

(1) No 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, except --

(A) pursuant to the judgment of a court on

account of benefits incorrectly paid on

behalf of such individual, . . .

* * *

(b) Adjustment or recovery of medical

assistance correctly paid under a State

plan

(1) No adjustment or recovery of any

medical assistance correctly paid on behalf

of an individual under the State plan may be

made . . . .

Ark. Dep't of Health & Human Servs. v. Ahlborn , 547 U.S. at 283 -

284.

44 . The Court recognized 42 U.S.C. § 1396 a (a)(25)(H) to be

an exception to the broader anti - lien provisions of 42 U.S.C .

§ 1396p, and held that:

[T] he federal statute places express limits

on the State's powe rs to pursue recovery of

funds it paid on the recipient's behalf.

These limitations [in 42 U.S.C. § 1396 p]

. . . prohibit[] States (except in

circumstances not relevant here) from

placing liens against, or seeking recovery

of benefits paid from, a Medicaid recipient.

Id. at 283.

45 . Based on its analysis of the interplay between the

Medicaid reimbursement prov isions and the Medicaid anti - lien

provisions, the Supreme Court held that the States could recover

for their Medicaid expenditures to the extent a recovery from a

third party accounted for such expenditures, but conditioned its

decision to state :

But that does not mean that the State can

force an assignment of, or place a lien on,

any other portion of Ahlborn's property. As

explained above, the exception carved out by

§§ 1396a(a)(25) and 1396k(a) is limited to

payments for medical care. Beyond that, the

anti - lien provision applies.

Id. at 284 - 285.

46 . T he Court concluded that ÐFederal Medicaid law does

not authorize ADHS to assert a lien on Ahlborn's settlement in

an amount exceeding $35,581.47, and the federal anti - lien

provision affirmatively prohibi ts it from doing so.Ñ Id. at

292.

47 . The analysis of the Supreme Court opinion in Ahlborn ,

including the facts regarding the nature of the $35,581.47 in

Ðmedical expensesÑ established in the lower court opinion, leads

to the conclusion that the $35,581.47 recovery against the

Medicaid lien represented the allocation of the third - party

settlement for past medical care. In reviewing the case as a

whole, the only conclusion that can be drawn is that the Court

intended the narrow exception to the anti - lien statute to allow

for reimbursement from that portion of a recovery intended to

account for Ðmedical expensesÑ actually paid by the state , i.e.,

past medical expenses, as opposed to that portion of a recovery

designated and reserved for fu ture medical or life care costs

that may be required to sustain a Medicaid recipient in the

future, and which have not yet been paid by Medicaid.

48 . Subsequent to its decision in Ahlborn , the Supreme

Court was again called upon to resolve issues relating to the

allocation of funds from a third - party recovery.

49 . In Wos v. E.M.A. , 528 U.S. _ _ _, 2013 U.S. LEXIS 2372

(2013), the Court reaffirmed its decision, as expressed in

Ahlborn , that the Medicaid anti - lien statute Ðprohibits States

from attaching a lien on the property of a Medicaid beneficiary

to recover benefits paid by the State on the beneficiary Ó s

behalf [and] pre - empts a State's effort to take any portion of a

Medicaid beneficiary's tort judgment or settlement not

Ò designated as pay ments for medical care. ÓÑ Wos v. E.M.A. ,

2013 U.S. LEXIS 2372 at *6. In Wos , the Court disapproved of an

irrebuttable formula by which the Medicaid share subject to

reimbursement would be calculated. Rather, the court required

some form of evidence - base d process to determine the actual

amount of medical expenses subject to recovery. Wos v. E.M.A. ,

2013 U.S. LEXIS 2372 at *27.

50 . The CourtÓs discussion of the reasons that an

evidence - based calculation is necessary to determine that

portion of a third - party recovery that is attributable to

Ðmedical expensesÑ includes the following:

The facts of the present case demonstrate

why Ahlborn anticipated that a judicial or

administrative proceeding would be necessary

in that situation. Of the damages ste mming

from the injuries E.M.A. suffered at birth,

it is apparent that a quite substantial

share must be allocated to the skilled home

care she will require for the rest of her

life. See App. 112. It also may be

necessary to consider how much E. M. A. and

h er parents could have expected to receive

as compensation for their other tort claims

had the suit proceeded to trial. An

irrebuttable, one - size - fits - all statutory

presumption is incompatible with the

Medicaid Act's clear mandate that a State

may not dema nd any portion of a

beneficiary's tort recovery except the share

that is attributable to medical expenses.

Wos v. E.M.A. , 2013 U.S. LEXIS 2372 at *20 .

51 . ÐSkilled home careÑ for the rest of oneÓs life is

sufficiently analogous to Ðfuture medical expensesÑ to convince

the undersigned that the Ðmedical expensesÑ that may be

recovered in derogation of the Medicaid anti - lien statute are to

be limited to expenses that have been incurred and paid by

Medicaid, and not to include future expenses that have yet to be

incurred, and have not been paid by Medicaid.

52 . Consideration of the underlying Fourth Circuit Court

of Appeals case affirmed by Wos demons trates with even greater

clarity and persuasiveness that the Medicaid anti - lien statute

prohibits recovery of paid Medicaid funds from funds designated

for future medical expenses.

53 . In E.M.A. v. Cansler , 674 F.3d 290 (4th Cir. 2012) ,

the Fourth Circui t noted that, in the underlying third - party

tort case, Ðthe plaintiffs had alleged that Ò [E.M.A.] suffered

severe and permanent injuries and that both parents . . . have

incurred liability for past, present and future medical and life

care expenses for tre atment of [E.M.A.], ÓÑ and that Ð the sums

set out in the Settlement Schedule were fair and just

compensation for their respective claims . Ñ Id . at 294.

54 . The Fourth Circuit construed Ahlborn , as does the

undersigned, that:

In Ahlborn , the Supreme Court reconciled

seemingly conflicting legal standards when

it considered whether an Arkansas third -

party liability statute permitting the state

to claim a right to the entirety of the

costs it paid on a Medicaid recipient's

behalf, regardless of whether that am ount

exceeded the portion of the recipient's

judgment or settlement representing past

medical expenses, violated federal Medicaid

law. 547 U.S. at 278. In an opinion by

Justice Stevens for a unanimous

Court, Ahlborn held that Arkansas' assertion

of a lie n on a Medicaid recipient's tort

settlement in an amount exceeding the

stipulated medical - expenses portion was not

authorized by federal Medicaid law; to the

contrary, the state's attempt to do so was

affirmatively prohibited by the general

anti - lien provi sion in 42 U.S.C. § 1396p.

Id . at 292. The F ourth Circuit noted that Ð Ahlborn is properly

understood to prohibit recovery by the state of more than the

amount of settlement proceeds representing payment for medical

care already receivedÑ ( Id . at 307), and concluded that Ð[a]s

the unanimous Ahlborn Court's decision makes clear, federal

Medicaid law limits a state's recovery to settlement proceeds

that are shown to be properly allocable to past medical

expenses.Ñ Id. at 312.

55 . Based on the foregoing, the undersigned is convinced

that reimbursement of Medicaid expenditures from that portion of

a settlement reserved for future care, including medical

expenses, is prohibited by the Medicaid anti - lien statute.

56 . The conclusion drawn herein finds support in the

Florida case of Davis v. Roberts , 130 So. 3d 264 (Fla. 5th DCA

2013) . In that case, the Cour t disapproved of a lower court

O rder which determined that AHCA was entitled to recover the

full amount of its Medicaid lien , calculated pursuant to the

formula established in section 409.910(11)(f) , from a Medicaid

recipientÓs third - party recovery . In reversing the trial court,

the Court engaged in an analysis of the effect of the Medicaid

anti - lien statute, as construed by Ahlborn and Wos , on the

presumption created by the section 4 09.910(11)(f) statutory

formula , and held that :

Ahlborn and Wos make clear that section

409.910(11)(f) is preempted by the federal

Medicaid statut e's anti - lien provision to

the extent it creates an irrebuttable

presumption and permits recovery beyond that

portion of the Medicaid recipient's third -

party recovery representing compensation for

past medical expenses.

Davis v. Roberts , 130 So. 3d at 270 ; see also Harrell v. Ag. for

Health Care Admin. , 143 So. 3d 478, 480 (Fla. 1st DCA 2014)(ÐAs

the Fifth District recently noted, Ò Ahlborn and Wos make clear

that section 409.910(11)(f) is preempted by the federal Medicaid

statute's anti - lien provision to t he extent it creates an

irrebuttable presumption and permits recovery beyond that

portion of the Medicaid recipient's third - party recovery

representing compensation for past medical expenses.ÓÑ); Suarez

v. Port Charlotte HMA, LLC , 171 So. 3d 740, 742 (Fla. 2d DCA

2015)(ÐPrior to the amendment [of section 409.910], recipients

were able to challenge the amount of a settlement designated as

a recovery for past medical expenses by motion in the circuit

court. Ñ ) .

57 . The 2012 version of section 409.910 at issue in Davis

did not contain the procedure now established in section

409.910(17)(b) allowing a Medicaid recipient to prove that Ða

lesser portion of the total recovery should be allocated as

reimbursement for pa st and future medical expenses than the

amount calculated by the agency pursuant to the formula set

forth in paragraph (11)(f).Ñ (emphasis added). However, there

has been no change to the Medicaid anti - lien statute that formed

the basis for the Davis opi nion. Therefore, the Fifth District

Court of AppealÓs analysis that the Medicaid anti - lien statute,

as interpreted by Ahlborn and Wos , limits AHCAÓs recovery to

that portion of Petitioners' settlement representing

compensation for past medical expenses re mains viable and

effective, regardless of the 2013 amendment to section 409.910.

58 . The argument has been made that recovery of past

versus future medical expenses was not the direct issue before

the c ourt s in Davis , Harrell , and Suarez . Nonetheless, those

cases provide the clearest expression of the limits of recovery

under Florida law , taking into account the application of the

federal Medicaid anti - lien statute as mandated by Ahlborn and

Wos .

59 . In addition to the more abbreviated assessment of the

issue by the courts in Davis , Harrell , and Suarez , the issue of

Medicaid reimbursement being limited to that portion of a third -

party recovery allocated to past medical expenses has been

squarely addressed in ca ses from no fewer than seven of

FloridaÓs 20 judicial circuits . As an example, in his Order

Allocating Settlement and Determining Medicaid Lien, Judge Kevin

Blazs determined that:

Ahlborn and Wos are controlling. Those

cases dictate that Section 409.910, Florida

Statutes , is preempted by the federal

Medicaid statute's anti - lien provision to

the extent the statute authorizes a lien

against any portion of the settlements that

did not represent recovery for past medical

expenses paid by Medicaid. See also , Davis

v. Roberts 130 So. 3d 264, 270 (F la. 5th DCA

2013); Harrell v. State , 143 So. 3d 478, 480

(Fla. 1st DCA 2014). When, as with the

instant settlements, a settlement is

undifferentiated, Ahlborn , Wos , Davis , and

Harrell dictate that a plaintiff be afforded

an opportunity to demonstrate with evidence

that the amount of a Medicaid lien resulting

from application of the formula in section

409.910(11)(f) exceeds the amount recovered

for past medical expenses; and, that

reimb ursement be limited to only the amount

recovered for past medical expenses.

Adams v. Orange Park Med. Ctr. , 2015 Fla. Cir. LEXIS 147, at

*4 - 5 (Fla. 4th Cir. Ct., June 21, 2015). Judge Blazs also

included, as a footnote to the text quoted above, that:

Th e Court rejects the Agency's argument that

the cases authorize a lien against the

settlements and reimbursement for all

medical expenses recovered, including

recovery for future medical expenses. The

clear implication of the cited authorities

was to limit Medicaid's lien and

reimbursement to the amount recovered for

past medical expenses.

Id. at *10 ; s ee also Harrell v. Bay Hosp. , Inc. , Case No. 02 -

3998CA (Fla. 14th Cir. Ct., Jan. 27, 2015)( Final Order on

Medicaid Lien )(ÐAccordingly, AHCA is entitled to recover from

[PlaintiffÓs] settlement only the $115,437.27 which represents

compensation for past medical expenses . Ñ); Davis v. Roberts ,

Case Nos. 09 - 4294 - CA - B and 09 - 4389 - CA - G (Fla. 5th Cir. Ct.,

Oct. 20, 2014)(Final Order on Medicaid Lien)(ÐThe settlement

allocation agreed to by the parties of 10% of the past medical

expenses is reasonable, appropriate and equitable. Accordingly,

AHCA is entitled to recover from [PlaintiffÓs] settlement only

the $23,2 92.88 which represents compensation received for past

medical expenses.Ñ); Roberts v. AlbertsonÓs Inc. , Case No. 2005

CA 6389 AO (Fla. 15th Cir. Ct., Mar. 14, 2014)(Order on

PlaintiffÓs Motion to Determine Equitable Lien Amount )(Ð[T]he

case settled for app roximately 10% of the total damages at the

time of settlement. Accordingly, the sum of $34,345.28

represents the appropriate allocation for past medical expenses

pursuant to [Ahlborn and Wos].Ñ); Williams v. Carson , Case

No. 0714107 (Fla. 17th Cir. Ct., July 18, 2014)(Final Order

Allocating Settlement and Determining Medicaid Lien) (ÐThis

Court finds that [Ahlborn] is controlling. [AHCA] is entitled

to assert its Section 409.910, Florida Statutes, Medicaid lien

against on ly the portion of the PlaintiffÓs settlement

representing compensation for past medical expenses.Ñ); Virgo v.

Arnold , Case No. 06 - CA - 009121 - G (Fla. 13th Cir. Ct., Mar. 14,

2014)(Final Amended Order on Medicaid Lien)(ÐBecause the Court

found . . . that the allocation to past medical expenses of

$22,152.95 was reasonable, . . . the court finds that Plaintiffs

have rebutted the formula at £ 409.910(11)(f), Fla. Stat.Ñ);

Roye v. Beltre , Case No. 12 - CA - 5553 - 09 - W (Fla. 18th Cir. Ct.,

Jan. 17, 2014)(Order Determin ing Medicaid Lien)(ÐPlaintiffs have

demonstrated that the $301.996.81 Medicaid lien exceeds the

amount recovered for past medical expenses. Accordingly, AHCA

may assert its Medicaid lien against, and seek recovery from

Plaintiffs, only in the total sum of $100,000.00.Ñ).

60 . What is clear from an analysis of the cases construing

the effect of the Medicaid anti - lien statute is that the

exception 4 / for reimbursement of medical expenses is designed to

allow for Medicaid to recover those costs that it actually spent

on behalf of a Medicaid recipient. Thus, satisfaction of a

Medicaid lien from that portion of a third - party recovery

designed and design ated to compensate for past medical expenses

expended on behalf of the Medicaid recipient is allowable under

the narrow exception to the anti - lien statute .

61 . Future medical expenses reserved for costs necessary

to sustain an injured party in the future, are no more related

to costs actually spent by Medicaid than are reservations for

future skilled home care or future loss of earning capacity. By

seeking recovery against property -- in the form of third - party

settlement proceeds -- that is unrelated to the costs expended

on PetitionerÓs behalf by Medicaid, AHCA seeks to enforce a lien

against the property of Petitioner that exceeds the amount of

benefits allocated in an agr e ed upon and approved recovery of

med ical assistance paid under a State plan . Thus, payment of

the Medicaid lien from proceeds reserved and designated for

future medical expenses violates the Medicaid anti - lien statute.

Section 409.910(17)(b)

62 . I n 2013, t he Florida Legislature amended s ection

409.910(17) to address the Supreme CourtÓs opinion in Wos that a

State may implement administrative procedures to ascertain that

portion of a third - party recovery that may be recoverable as

allowable Ðmedical expenses.Ñ

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

that in order to challenge a Medicaid lien calculated pursuant

to the statutory formula, Ð the recipient must prove, by clear

and convincing evidence, that a lesser portion of the total

recovery should be allocated as reimbursement for past and

future medical expenses than the amount calculated by the

agency .Ñ

64 . Even assuming the Florida statute can supersede a

limitation established by the Medicaid anti - lien statute, the

2013 amendment does not, by its terms, requi re reimbursement

from that portion of a third - party recovery designated as future

medical expenses.

65 . The term ÐreimburseÑ is commonly understood to mean

Ðto pay someone an amount of money equal to an amount that

person has spent.Ñ MERRIAM WEBSTER ONL INE DICTIONARY, at

http://www.merriam - webster.com/dictionary/reimburse.

66 . In th is case, Medicaid spent $ 303,757.77 , all of which

represented expenditures paid for PetitionerÓs past medical

expenses.

67 . There was no evidence that any portion of the Medicaid

expenditures were for future medical expenses.

68 . In order to allow reimbursement to AHCA from those

portions of a settlement reserved for future, but as yet

unincurred, medical expenses, sectio n 409.910(17)(b) should

provide for Ðreimbursement from past and future medical

expenses.Ñ However, the statute allows Ðreimbursement for past

and future medical expenses.Ñ There is a fundamental linguistic

difference between Respondent being reimbursed for future

medical expenses paid by Medicaid, and Respondent being

reimbursed for its past medical expenses from that portion of a

settlement reserved for as yet unpaid future medical expenses.

69 . It is the opinion of the undersigned that

reimbursement for past medical expenses to be recovered from

funds designated to as yet unincurred future medical expenses is

not a result required by section 409.910(17)(b) . Thus, AHCA can

seek reimbursement of Medicaid funds actually spent for future

medical expenses , if any . However, section 409.910 does not

suggest that AHCA can be reimbursed from funds set aside for

expenses unrelated to those actually paid by Medicaid.

Conclusion

70 . Petitioner has proven, by clear and convincing

evidence, that a lesse r portion of the total recovery than the

amount calculated pursuant to the formula in paragraph (11)(f)

should be reimbursed to AHCA as the proportionate share of the

settlement proceeds fairly attributable to expenditures that

were paid by AHCA for PetitionerÓs past medical expenses .

71 . The total damages , as calculated by the jury, are

$41,956,473.73.

72 . The amount recovered from all third parties is

$ 4,300,000.00 from ApplebeeÓs, $25,000.00 from Mr. Raub, and

$10,000.00 from Geico, for a total recovery from third parties

of $4,335,000.00.

73 . $ 4,335,000.00 is 10.33 percent of 41,956,473.73.

Thus , the amount recovered by Petitioner in damages is 10.33

percent of the total claim.

74 . The Settlement A greement and Releases recognized that

a lesser, but proportionate share of the total recovery should

be allocated in satisfaction of the Medicaid lien for past

medical expenses. In calculating the proportionate share, the

Releases failed to include the fu ll amount of past medical

expenses incurred on PetitionerÓs behalf, regardless of the

provider. Thus, the appropriate amount from which the

proportionate share representing the Medicaid lien should be

calculated is the total amount of $436,473.73.

75 . Thus, since 10.33 percent of $436,473.73 is

$45,087.74 , that figure represents the correct proportionate

share of the total recovery that should be allocated to the

Medicaid lien .

CONCLUSION

Upon consideration of the above F indings of F act and

C onclusions of L aw, it is hereby

ORDERED that :

The Agency for Health Care Administration is entitled to

$ 45,087.74 in satisfaction of its Medicaid lien.

DONE AND ORDERED this 8th day of September , 2016, in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 8th day of September , 2016 .

ENDNOT ES

1/ This amount represents the sum of the $303,757.77 paid by

Medicaid, and the $13,985.96 in payments administered through

the Rawlings Company .

2 / As with Administrative Law Judge BoydÓs analysis of Florida

cases, Justice DavisÓ s concurring opinion is an admirable

analysis of the issue nationwide and is recited here in its

entirety:

The major ity opinion in this case is a

thorough, well - reasoned, and comprehensive

compendium of this Court's jurisprudence

regarding DHHR's statutory right, afforded

by W. Va. Code § 9 - 5 - 11 (2009) (Supp. 2011),

to recover monies it has paid for a Medicaid

recipient 's medical expenses. I write

separately to reiterate my agreement with

the majority's recognition that DHHR's

recovery pursuant to W. Va. Code § 9 - 5 - 11 is

limited to that portion of a Medicaid

recipient's damages award that is allocated

to, or specified a s payment for, his/her

past medical expenses only. Unquestionably,

the seminal case on this point, Arkansas

Department of Health and Human Services v.

Ahlborn , 547 U.S. 268, 126 S. Ct. 1752, 164

L. Ed. 2d 459 (2006), remains silent as to

whether a recovery of previously paid

Medicaid benefits attaches only to the

recipient's damages award for past medical

expenses or whether reimbursement also may

be sought from the recipient's future

medical damages award, referring only to

"medical expenses," gene rally, without

distinction between past and future medical

expenses. See Ahlborn , 547 U.S. at 291,

126 S. Ct. at 1766, 164 L. Ed. 2d 459

(citation omitted). Whether the Supreme

Court intentionally or astutely failed to

resolve this quandary remains to be seen,

although the most logical explanation is

that the Court simply did not need to reach

this issue insofar as the parties therein

had agreed that the Medicaid payor's

recovery would be limited to that portion of

the Medicaid recipient's settlement proc eeds

that "constituted reimbursement for medical

payments made." See 547 U.S. at 274, 126

S. Ct. at 1758, 164 L. Ed. 2d 459 (citation

omitted).

Nevertheless, this absence of a definitive

ruling inevitably has led to a difference of

opinion regarding the source of a Medicaid

payor's recovery: whether the recovery

source is limited to past medical damages

only or whether both past and future medical

damages are available to satisfy the payor's

previously paid expenses. The dissenters

favor attaching that portion of the

recipient's damages award representing

his/her future medical expenses that is

intended to provide the recipient financial

security and ensure that he/she will have

sufficient resources to continue receiving

necessary medical care. By contr ast, the

majority of the Court, as we consistently

have done in our prior opinions, resolves

this issue by consulting the other courts

who have carefully considered and answered

this question. The majority view in the

country, with which the majority of this

Court agrees, permits a Medicaid payor to

recover benefits it previously has paid on

behalf of a Medicaid recipient from that

portion of the recipient's damages award

representing his/her past medical e xpenses

only . See , e.g. , E.M.A. v. Cansler ,

674 F.3d 290 (4th Cir. 2012); McKinney v.

Philadelphia Hous. Auth . , No. 07 - 4432, 2010

U.S. Dist. LEXIS 86773, 2010 WL 3364400

(E.D. Pa. Aug. 24, 2010); Price v. Wolford ,

No. CIV - 07 - 1076 - M, 2008 U.S. Dist. LEXIS

85808, 2008 WL 4722977 (W.D. Okla. Oct. 23,

2008); Branson v. Sharp Healthcare, Inc . ,

193 Cal. App. 4th 1467, 123 Cal. Rptr. 3d

462 (2011); Garcon v. Agency for Health Care

Admin . , No. 3D11 - 925, 2012 Fla. App. LEXIS

9480, 2012 WL 2120870 ( Fla. Dist. Ct. App.

June 13, 2012); Lugo v. Beth Israel Med.

Ctr . , 13 Misc. 3d 681, 819 N.Y.S.2d 892

(N.Y. Sup. Ct. 2006); Doe v. Vermont Office

of Health Access , 191 Vt. 517, 54 A.3d 474,

2012 Vt. LEXIS 41, 2012 WL 752727 (2012).

The view espoused by the dissenting members

of this Court is the country's minority

view, which permits the attachment of both

past and future medical damages awarded to

the Medicaid recipient. See, e.g. , I.P. v.

Henneberry , 795 F. Supp. 2d 1189 (D. Colo.

2011); Special Needs Tru st for K.C.S. v.

Folkemer , No. 08:10 - CV - 1077 - AW, 2011 U.S.

Dist. LEXIS 32442, 2011 WL 1231319 (D. Md.

Mar. 28, 2011); In the Matter of Matey v.

Matey , 147 Idaho 604, 213 P.3d 389 (2009).

I agree with the soundness of the legal

reasoning supporting the decisions of a

majority of the courts in the country, which

this Court's majority has adopted in its

decision of this case: the recovery of

previously paid Medicaid expenses is limited

to the recipient's damages award for his/her

past medical expenses. A ccordingly, I

respectfully concur with the majority's

opinion in this case.

Lewis v. W. Va. Dep't of Health & Human Res. (In re E.B.) ,

729 S.E.2d at 305 - 306.

Justice DavisÓ s concurring opinion, authored in 2012, would

now undoubtedly include Aguilera v. Loma Linda University

Medical Center , 185 Cal. Rptr. 3d 699 (Cal. Dist. Ct. App.

2015); State Dep ar t ment of Health Care Policy & Fin ance v. S.P. ,

356 P.3d 1033 (Colo. Ct. App. 2015); and In re Estate of

Solivan , 2015 N.J. Super. Unpub. LEXIS 2406, * 17 ((N.J. Super.

Ct. App. Div. 2015) , in his analysis of the Ðmajority view.Ñ

3 / A review of Ahlborn , in light of the facts recited in the

lower court proceeding affirmed by the Supreme Court ,

demonstrates that the $215,645.30 in Ðmedical expensesÑ at issue

in Ahlborn was limited to amounts spent for past medical

expenses, and that the $35,581.47 ultimately paid to the State

in satisfaction of its Medicaid lien represented Ða fair

representati on of the percentage of the settlement constituting

payment by the tortfeasor for past medical care.Ñ Ahlborn v.

Ark. Dep't of Human Servs. , 397 F.3d 620, 622 (8th Cir. 2005).

Thus, the Ðmedical expensesÑ for which recovery from the

settlement was author ized under the anti - lien statute were

limited to those for past medical expenses.

Though the full value of Ms. AhlbornÓs suit included an

estimate of future medical expenses, there was no suggestion by

the Supreme Court that recovery of past medical ex penses from

the future medical expenses component of the settlement proceeds

would be allowed under the anti - lien statute. Based on an

analysis of the underlying case and facts being decided, the

undersigned concludes that when the Supreme Court stated th at

Ð the relevant ÒliabilityÓ extends no further than [$35,581.47] Ñ

( Ahlborn , 547 U.S. at 280 - 281) , the liability for Ðm edical

expensesÑ at issue w as that for past medical expenses.

4 / In analyzing the effect of the Medicaid anti - lien statute in

light of the exception created in 42 U.S.C. § 1396a(a)(25)(H) by

which a State is considered to have acquired the rights of a

Medicaid recipient to payment by a liable third party Ðfor such

hea lth care items or services,Ñ the undersigned recognizes the

general and oft - held proposition that Ð[i]n construing

provisions . . . in which a general statement of policy is

qualified by an exception, we usually read the exception

narrowly in order to pres erve the primary operation of the

provision.Ñ Comm'r v. Clark , 489 U.S. 726, 739 (1989).

COPIES FURNISHED :

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Richard J. Shoop, Age ncy Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

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(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

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Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

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NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the o riginal notice of administrative appeal with the

agency clerk of the Division of Administrative 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.