17-003011MTR William O&Apos;Malley vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, February 16, 2018.

Summary: Petitioner proved that 8.75% of its settlement was allocated for medical expenses, and that is the amount that should be paid to satisfy the Medicaid lien.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM O'MALLEY,

Petitioner,

vs. Case No. 17 - 3011MTR

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, o n Dec ember 5, 2017, a final hearing

was held in this case before Administrative Law Judge Yolonda Y.

Green of the Florida Division of Administrative Hearings

(ÐDivisionÑ) , in Tallahassee, Florida.

APPEARANCES

For Petitioner: Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

For Respondent: Elizabeth A. Teegen, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue to be determined in this case is the amount to be

paid to Respondent , Agency for Health Care Administration

(ÐRespondentÑ or ÐAHCAÑ), to reimburse Medicaid for medical

expens es pai d on behalf of Petitioner from proceeds of a

personal injury settlement received by Petitioner .

PRELIMINARY STATEMENT

On November 16, 2017, Petitioner, William OÓMalley, filed a

Petition to Determine Amount Payable to Agency for Health Care

Admini stration in Satisfaction of Medicaid Lien. On May 25,

2017, Respondent filed a Notice of Conflict and Motion for Stay.

The motion asserted that the Honorable Mark E. Walker enjoined

AHCA from enforcing section 409.910, Florida Statutes , in the

case of Ga llardo v. Senior , 4:1 6 - cv - 116 - MW - CAS (N.D. Fla.

2017) . 1/ AHCA asserted that it was seeking clarification of the

federal injunction, and requested that this matter be stayed

until the resolution of the federal proceeding. On May 30 ,

2017, the undersigned issued an Order placing the case in

abeyance and requiring a joint status report no later than

June 30, 2017, notifying the Division of the status of the

federal court proceeding and the partiesÓ positions regarding

viability of this proceeding.

On June 30, 2017, Respondent filed a status report. AHCA

asserted that the stay should be extended because of the

conflict between the federal proceeding in Gallardo and the

precedent of Giraldo v. Agency for Health Care Admin istration ,

208 So. 3d 244 (Fla. 1st D CA 201 6) ( rev. granted by Giraldo v .

Agency for Health Care Administration , 2017 Fla. Lexis 1826

(Fla. Sept. 6, 2017) (No. SC17 - 297) ) . On the other hand,

Petitioner filed a motion for hearing on the undersignedÓs Order

placing this case in abeyance. Petiti oner a sserted that the

federal court decision did no t need clarification, and that

t here has been conflict both at the Division and the state

appellate courts. The undersigned conducted a status conference

with the parties on July 10, 2017, to discuss Pet itionerÓs

motion for rehearing and the status of this case. The

undersigned entered an Order continuing the abeyance and

requ iring a status report by August 10, 2017 . The parties filed

unil ateral status reports that indicated no change in their

respectiv e positions. The parties did advise of the stat u s of

the Gallard o case , and the undersigned entered an Order o n

September 14, 2017, directing Respondent to file copies of

AHCAÓs post - judgment motions, supplemental briefing , and the

Second Amended Judgment in Gallardo and deferred a determination

regarding w hether the case should remain in abeyance.

On September 15 , 2017, AHCA filed the requested documents,

as well as copies of an Order Granting in Part and Denying in

Part Motion to Alter or Amend Judgment, 2017 U.S. Dist. LEXIS

112448 (Second Order), filed in the Gallardo case on July 18,

2017. After review of the documents received, a s tatus

c onference was held to discuss the materials and possible

hearing dates. On September 19, 2017, the undersigned i ssued a

Notice of Hearing scheduling this matter for a hearing on

December 5, 2017.

On November 30, 2017, the parties filed a Joint Prehearing

Stipulation that contained a statement of admitted and

stipulated facts for which no further proof would be neces sary.

The stipulated facts have been incorporated into the Findings of

Fact below, to the extent they are relevant.

The final hearing commenced as scheduled. At hearing,

PetitionerÓs Exhibits 1 through 11 were admitted. Petitioner

presented the testim ony of two expert witnesses: Steven

Browning, Esquire , and R. Vinson Barrett, Esquire . Respondent

offered no exhibits at the hearin g, but called Steve Carter,

Esquire (expert) , as a witness.

The official Transcript of the hearing was filed with the

Div ision on December 21, 2017 . The parties filed a Joint Motion

for Extension of Time for Filin g Proposed Final Orders (ÐPFOsÑ).

The undersigned granted that motion and the parties were

directed to file the PFOs by January 16, 2018. The parties

filed a sec ond motion for extension of time until January 17,

2018, which was granted. The parties timely filed their PFOs

and each has been considered in preparation of this Final Order.

Unless stated otherwise, a ll statutory references are to

the 2016 version of F lorida Statutes . 2 /

FINDING S OF FACT

The following findings of fact are based on exhibits

admitted into evidence, testimony offered by witnesses, and

admitted facts set forth in the prehearing stipulation .

1. Petitioner, William OÓMalley, is the recipien t of

Medicaid for injuries he sustained in an automobile accident.

2. Respondent is the state agency charged with

administering the Florida Medicaid program, pursuant to

chapter 409.

3 . On September 9, 2009, Petitioner, William OÓMalley ,

lost control o f his vehicle when it hydroplaned across three

lanes of traffic. Mr. OÓMalleyÓs vehicle left the roadway and

struck a tree. While he was r estrained with a seat belt,

Mr. OÓMalley suffered a severe brain injury, fractured skull,

injury to his neck at the C6 - C7 level, numerous fractured ribs,

shattered spleen, lacerated liver, abdominal bleeding, a

fractured ankle and other serious injuries. He remained in a

coma for a number of weeks undergoing extensive surgical

procedures to save his life. As a result of his sev ere and

permanent injuries, Mr. OÓMalley now suffers from cognitive

deficits, is disfigured, and is unable to work. He receives

disability payments due to his injuries.

4 . A portion of Mr. OÓMalleyÓs past medical expenses

related to his in juri es was paid by Medicaid, in the amount of

$196,125.72.

5 . Mr. OÓMalley initiated a personal injury civil action

to recover all his damages associated with his injuries against

the construction companies who allegedly designed and

constructed the roadway in a defective manner (ÐDefendantsÑ).

6 . During the pendency of Mr. OÓMalleyÓs personal injury

action, AHCA was notified of the action, and asserted a

$196,125.72 Medicaid lien against any damages received by

Mr. OÓMalley. AHCA was not otherwise involv ed in the personal

injury action or settlement.

7 . In October 2016, Mr. OÓMalleyÓs personal injury action

settled for the gross amount of $1,750,000.

8 . The Ge neral Release memorializing the settlement

agreement provides as follows :

Although it i s acknowledged that this

settlement does not fully compensate William

OÓMalley for all of the damages he has

allegedly suffered, this settlement shall

operate as a full and complete Release as to

Releasees without regard to this settlement

only compensatin g William OÓMalley for a

fraction of the total monetary value of his

alleged damages. The parties agree that

William OÓMalleyÓs alleged damages have a

value in excess of $20,000,000.00, of which

$379,874.27 represents William OÓMalleyÓs

claim for past med ical expenses. Given the

facts, circumstances, and nature of William

OÓMalleyÓs injuries and this settlement, the

parties have agreed to allocate $33,239.00

of this settlement to William OÓMalleyÓs

claim for past medical expenses and allocate

the remainde r of the settlement toward the

satisfaction of claims other than past

medical expenses. This allocation is a

reasonable and proportionate allocation

based on the same ratio this settlement

bears to the total monetary value of all

William OÓMalleyÓs damage s. Further, the

parties acknowledge that William OÓMalley

may need future medical care related to his

injuries, and some portion of this

settlement may represent compensation for

future medical expenses William OÓMalley

will incur in the future. However, the

parties acknowledge that William OÓMalley,

or others on his behalf, have not made

payments in the past or in advance for the

First PartyÓs future medical care and

William OÓMalley has not made a claim for

reimbursement, repayment, restitution,

indemni fication, or to be made whole for

payments made in the past or in advance for

future medical care. Accordingly, no

portion of this settlement represents

reimbursement for future medical expenses.

9 . By letter of October 13, 2016, Mr. OÓMalleyÓs attorne y

notified AHCA of the settlement and provided AHCA with a copy of

the executed Release and itemization of $123,699.86 in

litigation costs. This letter explained that Mr. OÓMalleyÓs

damages had a value in excess of $20 million and t he settlement

represent ed only 8.75 percent of the recovery of Mr. OÓMalleyÓs

$379,874.27 c laim for past medical expenses. This letter

requested AHCA to advise as to the amount AHCA would accept in

satisfaction of the $196,125.72 Medicaid lien.

10 . AHCA responded to Mr. OÓM alleyÓs attorneyÓs letter and

demanded full payment of the entire $196,125.72 Medicaid lien

from the settlement.

11 . AHCA , through the Medicaid program , spent $196,125.72

on behalf of Mr. OÓMalley, all of which represents expenditures

paid for Mr. OÓ Mal leyÓs past medical expenses. No portion of

the $196,125.72 paid by AHCA represented expenditures for future

medical expenses.

12 . Application of the fo rmula at section 409.910(11)(f)

to Mr. OÓMalleyÓs settlement requ ires payment to AHCA of

$196,125.72, the actual amount of the medical expenses paid by

Medicaid .

13 . Petitioner disputes that $196,125.72 is the amount of

recovered medical expenses payable to Respondent, and instead

asserts that $33,239.00 in medical expenses are payable to

Respondent.

1 4 . Notwithstanding PetitionerÓs dispute, Petitioner has

deposited the full Medi caid lien amount in an interest - bearing

account for the benefit of AHCA pending an administrative

determination of AHCAÓs rights, and this constitutes Ðfinal

agency actionÑ for purposes of chapter 120, Florida Statutes,

pursuant to section 409.910(17).

15 . In support of his position, Mr. OÓMalley presented the

testimony of two expert s , Steven Browning, Esquire , and Vinson

Barrett, Esquire.

16 . Mr. Browning represen ted Mr. OÓ Malley in the personal

injury action. He testified as an expert regarding the

valuation of Mr. OÓMalleyÓs personal injury claim.

17 . Mr. Browning has practiced law for 31 years , primarily

representing plaintiffs. He is a partner of his law firm and

h andles serious personal injury, wrongful death, and

catastrophic injury cases.

18 . Mr. Browning handles cases that result in jury trials

and , thus, he routinely researches jury verdicts to determine

potential value of cases. In the litigation of civil actions,

he also prepares mediation statements regarding the value of

cases.

19 . He reviews life care plans, economic reports, and past

jury verdicts to determine the value of a case.

20 . Mr. Browning opined that $ 20 million constituted a

very conserv ative valuation of damages suffered by Mr. OÓMalley.

He based this op inion on having represented Mr. OÓMalley in the

un derlying personal injury action and on his knowledge of jury

verdicts and settlements in recent Florida cases involving

awards of damage s to individuals with similar injuries as

Mr. OÓMalley. He emphasized that his valuation was far more

conservative than ma ny comparable cases that resulted in

substantially higher verdicts or settlements.

21 . Mr. Browning concluded that the $1,750,00 0 settlement

amount represented 8.75 percent of the damages suffered by

Mr. OÓMalley. He also opined that only 8.75 percent of the

$196,125.72 , the past medical expenses paid by Respondent , was

recovered. Mr. Browning was accepted as an expert in this

ma tt er and his testimony was found to be persuasive.

22 . Mr. OÓMalley also prese nted the testimony of

Mr. Barrett regarding the valuation of PetitionerÓs claim.

23 . Mr. Barrett has pra cticed law for approximately

35 years. He primarily practices in the areas of medical

malpractice, pharmaceutical liability, and catastrophic injuries

resulting from automobile accidents.

24 . Mr. Barrett routinely handles jury trials. Thus , he

routinely monitors jury verdicts and determines the value of

damages suffere d in personal injury actions. He reviewed recent

jury verdicts and the life care plan for Mr. OÓMalley to

formulate his opinion regarding the val uation of Mr. OÓMalleyÓs

claim.

25 . Mr. Barrett testified that $20 million to $ 25 million

was the estimated value of Mr. OÓMalleyÓs claim. He testified

that the amount was a very conservative esti mate of damages

suffered by Mr. OÓMalley.

26 . Similar to Mr. Browning, Mr. Barrett opined that

allocating 8.75 percent to past medical expenses in the amount

of $196 ,125.72 was a rea sonable allocation of past medical

expenses and reflected the amount recovered by Mr. OÓMalley for

past medical expenses.

27 . Respondent also presented an expert regarding the

valuation of Mr. OÓ MalleyÓs claim, Steven Carter. Mr. Carte r

has been licensed to practice law for 23 years. He is the

managing shareholder of his law firm.

28 . He has handled catastrophic injury cases in which he

determined the value of the cl aim. He has conducted 35 to

40 jury or bench trials.

29 . Mr. Ca rter was accepted as an expert regarding

valuation of Mr. OÓMalleyÓs claim.

30 . Mr. Carter testified that the value of Mr. OÓMalley Ós

damages was the actual settlement amount of $1,757,000.

Ultimate Finding of Fact

31 . The undersigned finds that the testimony of

Mr. Browning and Mr. Barrett was more persuasive regarding

valuation of Mr. OÓMalleyÓs claim than the testimony of

RespondentÓs expert witness . Mr. Browning and Mr. BarrettÓs

number of years of experience with handling catastrophic

personal i njury cases , and the fact that they had the benefit of

the life care plan when evaluating the case , make their

testimony more persuasive regarding the valuation of damages

suffered by Mr. OÓMalley in this case .

CONCLUSIONS OF LAW

32. The Division of Admin istrative 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 (2016) .

33. AHCA is the agency authorized to administer FloridaÓs

Medicaid program. § 409. 902, Fla. Stat.

34. 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).

35. ÐThe Medicaid program is a coopera tive one. The

Federal Government pays between 50 percent and 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 determination s,

collecting and maintaining information, and administering the

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

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

omitted).

36. Though par ticipation is optional, once a s tate elect s

to participate in the Medicaid program, it must comply with

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

37. One condition for receipt of federal Medicaid funds

requires states to seek reimbursement for medical expenses

incurred o n behalf of Medicaid recipients , who later recover

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

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

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

requirement is that Ðeach participating s tate 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 provided to a Medicaid

recipientÑ).

38. Consistent with this federal requirem ent, the Florida

Legislature enacted section 409.910, designated as the ÐMedicaid

Third - Party Liability Act,Ñ 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.

S mith 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. 5th

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

directives the Florida legislature enacted section 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).

39 . Section 409.910(1) sets forth the Florida

LegislatureÓs clear intent that Medicaid be repaid in full for

medical care furnished to Medicaid recipients by providing that:

It is the intent of the Legislature that

Medicaid be the payor of last resort for

medically necessary go ods and services

furnished 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 b een provided

by Medicaid, 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 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

available at any time, the public treasury

should not bear the burden of medical

assistance to the extent of such resources.

40 . In addition, the Florida Legislature has authorized

AHCA to recover the monies pai d from any third party, the

recipient, the provider of the recipientÓs medical services, and

any person who received the third - party benefits. Specifically,

section 409.910(7) provides the following :

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 benefits.

(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 refun d or pay to the agency any

amount in excess of the actual third - party

benefits received by the provider from a

third - party payor for medical services

provided to the recipient; or

4. Any person who has received the third -

party benefits.

41 . AHCAÓs eff orts to recover the full amount paid for

medical assistance is facilitated by section 409.910(6)(a),

which provides that AHCA:

[I]s automatically subrogated to any rights

that an ap plicant, recipient, or legal

representative has to any third - party

benefit for the full amount of medical

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 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.

42 . AHCAÓs efforts are also facilitated by the fact that

AHCA has Ðan automatic lien for the full amount of medical

assistance provided by Medicaid to or on behalf of the recipient

for medical care furnished as a result of any cove red 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. Stat.

43 . This Medicaid lien is iron - clad. For example, section

409.901(13) provides that no settlement impairs the l ien:

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 effe ctive

or binding against the agency for benefits

accrued without the express written consent

of the agency or an appropriate order of a

court having personal jurisdiction over the

agency.

4 4 . The amount to be recovered by AHCA from a judgment,

award, or settlement from a third 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).

4 5 . Section 409.910(11)(f) provides:

(f) Notwithstanding any provision in this

sect ion 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

distribute d as follows:

1. After attorneyÓs 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 of 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 purpos es 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 workersÓ compensation, personal

injury protection, and casualty.

4 6 . In this matter, applying the formula in section

409.910(11)(f) to the $1,750,000 settlement resul ts in AHCA

being owed $196,125.72 in order to satisfy the lien.

4 7 . W hen AHCA has n ot 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 of a total recovery should be allocated as

reimburs ement for medical expenses in lieu of the amount

calculated by application of the formula in section

409.910(11)(f).

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

that:

(b) 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 th e agency or after the date of

placing the full amount of the third - party

benefits in the trust account for the

benefit of t he agency pursuant to

paragraph (a). The petition shall be filed

with the Division of Administrative

Hearings. For purposes of chap ter 120, the

payment of funds to the agency or the

placement of the full amount of the third -

party benefits in the trust account for the

benefit of the agency constitutes final

agency action and notice thereof. Final

order authority for the proceedings

sp ecified in 1 this subsection rests with the

Division of Administrative Hearings. This

procedure is the ex clusive method for

challenging the amount of third - party

benefits payable to the agency. In order to

successfully challenge the amount payable to

the agency, the recipient must prove, by

clear and convincing evidence, that a lesser

portion of the total re covery 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 asser ted by the

agency.

49 . 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 is attributable to

medical costs and sets forth an administrative procedur e 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 establi shed by the statutory default

al location by demonstrating , with evidence , that the lien amount

exceeds the amount recovered for medical expenses Ñ ).

50. T he section provides a burden of proof 3 / and the

ul timate conclusion to be reached when cha llenging the amount of

the lien. However, it does not provide the method to be used to

establish that a lesser amount is more reasonable. In this

case, Petitioner presented sufficient evidence to establish the

reasonable amount of the settlement proceeds that should be

allocated to past medical e xpenses.

51. Based on the foregoing, Mr. OÓMalley established by a

p reponderance of the evidence through t he testimony of

Mr. Browning and Mr. Vinson , that $33,239.00 , which is 8.75

percent of PetitionerÓs claim for medical expenses, is a

reasonable all ocation of the portion of PetitionerÓs past

medical expenses recovered through the settlement agreement.

ORDER

Based on the foregoing Findings of Fact and Con clusions of

Law, it is ORDER ED that the Agency for Health Care

Administration is entitled to $3 3,239.00 in satisfaction of its

Medicaid lien.

DONE AND ORDE RED this 16th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 16th day of February , 2018 .

ENDNOTE S

1 / Originally styled Gallardo v. Dudek , the case was restyled

after Justin Senior replaced AHCAÓs former secretary, Elizabeth

Dudek .

2 / The 2016 version of Florida Statutes is applicable to this

case. In Suarez v. Port Charlotte HMA, LLC , 171 So. 3d 740

(Fla. 2d DCA 2015), the court determined t hat AHCA's right under

section 409.910 to be reimbursed from third - party benefits

recovered by the Medicaid recipient vests at the time of the

recipient's recovery of those benefits, not when the lien itself

attaches, so the version of section 409.910 in e ffect at the

time of the recovery of third - party benefits applies to

challenges brought under section 409.910(17)(b). As noted in

paragraph 7 , Petitioner's settlement agreements with the third

parties in this case w ere executed in October 2016 . While the re

were substantive amendments to section 409.910 in 20 17

(effective July 1, 2017), those amendments are not retroactive.

3 / As discussed in Judge WalkerÓs Gallardo O rder , the clear and

convincing burden of proof can no longer be applied in

proceedings s uch as these. However, section 120.57(1)(j)

contains a default provision regarding the burden of proof and

provides that Ðfindings of fact shall be based on a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except a s otherwise provided by

statute.Ñ Museguez v. Ag. for Health Care Admin . , Case

No. 16 - 7379MTR (Fla. DOAH Sept. 19, 2017). A preponderance of

the evidence is defined as Ðthe greater weight of the evidence,Ñ

or evidence that Ðmore likely than not tends t o prove a certain

proposition.Ñ S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So.

3d 869, 871 (Fla. 2014).

COPIES FURNISHED:

Alexander R. Boler, Esquire

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

(eServed)

Floyd B. Faglie, Esquir e

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

(eServed)

Elizabeth A. Teegen, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32308

(eServed)

Patrick John Murphy, Esquire

Office of t he Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399

(eServed)

Richard J. Shoop, Agency Clerk

A gency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

A gency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Kim Annette Kellum, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServ ed)

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 original 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.