19-001696MTR Derek Matson vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Wednesday, September 18, 2019.

Summary: The preponderance of the evidence demonstrates that $1794.57 amounts to a fair and reasonable determination of the past medical expenses actually recovered by Petitioner and payable to AHCA.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEREK MATSON,

Petitioner,

Case No. 19 - 1696MTR

vs.

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal ad ministrative hearing was

conducted before Garnett W. Chisenhall, Administrative Law Judge

(“ALJ”) of the Division of Administrative Hearings (“DOAH”) via

video teleconference at sites in Jacksonville and Tallahassee,

Florida , on June 21, 2019.

APPEARANCES

For Petitioner: Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

For Respondent: Alexander R. Boler, Esquire

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The iss ue to be determined is the amount Respondent, Agency

“Mr. Matson”) pursuant to section 409.910, Florida Statutes

(2018), 1/ fro m settlement proceeds received from a third party.

PRELIMINARY STATEMENT

If a Medicaid recipient receives a personal injury

settlement from a third party, then section 409.910 mandates that

those settlement proceeds shall be used to reimburse the Medicaid

program for medical expenses paid on the Medicaid recipient’s

behalf. This mandate is facilitated by a statutory lien in

AHCA’s favor on the settlement proceeds, and federal law mandates

that Medicaid’s lien only applies to past medical expenses that

the Medicaid recipient actually recovered through the settlement .

When a Medicaid recipient’s settlement proceeds are less than the recipient’s total damages (which consists of multiple components,

such as past medical expenses, economic damages, and nonecono mic

damages), a question can arise as to how much of the past medical

expenses were actually recovered by the Medicaid recipient and

thus subject to the Medicaid lien. Section 409.910(11)(f), sets

forth a formula to determine the amount Medicaid shall rec over

from the settlement proceeds, and section 409.910(17)(b) provides

that a Medicaid recipient can request a formal administrative

hearing to demonstrate that the past medical expenses actually

recovered through the settlement were less than the amount

c alculated via section 409.910(11)(f).

On March 29, 2012, Mr. Matson filed a “Petition to Determine

Amount Payable to Agency for Health Care Administration in

AHCA’s imposition of a lien of $85,89 6.60 on $305,000.00 of

settlement proceeds. Because Mr. Matson valued his total damages

as being at least $20 million, he asserted in the Petition that

he only recovered 1.52 percent “of each and every element of his

damages” including the past medical ex penses that Medicaid paid

on his behalf. As a result, Mr. Matson stated that AHCA was only

entitled to $1,638.15 , from the settlement proceeds.

The parties filed a Joint Pre - hearing Stipulation in which

they identified stipulated facts for which no furthe r proof would

be necessary. Those stipulated facts have been accepted and

considered in the preparation of this Final Order.

The final hearing was held as scheduled on June 21, 2019.

At the outset, Mr. Matson’s counsel announced that the parties

had re ached an agreement and that there would be no objection to

accepting Petitioner’s Exhibits 1 through 8 into evidence.

Mr. Matson’s counsel also announced corrections to the Joint

Pre - hearing Stipulation. Specifically, Mr. Matson’s counsel

stated that Mr . Matson’s total claim for past medical expenses

was actually $118,063.91. As a result, Mr. Matson’s position was

that AHCA’s recovery from the settlement proceeds should be

limited to $1,794.57 rather than the $1,638.15 described in the

Petition.

During the final hearing, Mr. Matson presented the testimony

of Jack Hill, Esquire, and the undersigned accepted Petitioner’s

Exhibits 1 through 8 into evidence without objection.

AHCA offered no witnesses and did not move any exhibits into

evidence.

The one - volume Transcript from the final hearing was filed

on July 30, 2019.

Respondent filed a timely proposed final o rder on August 14,

2019. Mr. Matson’s attorney filed a m otion on August 19, 2019,

requesting leave to file an untimely proposed final order. The

undersigned issued an Order on August 19, 2019, granting that

m otion, and Petitioner filed a p roposed final order that same

day. Both proposed final o rders were considered during the

preparation of this Final Order.

FINDING S OF FACT

The following find ings are based on testimony, exhibits

accepted into evidence, admitted facts set forth in the P re -

hearing S tipulation, and matters subject to official recognition.

Facts Pertaining to the Underlying Personal Injury Litigation and

the Medicaid Lien

1. Mr . Matson was 25 years old in November of 2017, and

employed as an executive chef responsible for managing a

restaurant’s cooking operations. His annual salary was

approximately $61,000.00 .

2. On November 5, 2017, Mr. Matson was drinking and having

brunc h with his girlfriend. He met a friend, and they decided to

take the friend’s boat out that afternoon. Mr. Matson was

already very intoxicated by the time he arrived at the dock and

continued to drink after the boat left the dock. While the boat

was anc hored in very shallow water, Mr. Matson dove from the

boat, struck his head on the seafloor, and suffered a

catastrophic spinal cord injury.

3. Mr. Matson is now unable to walk, ambulate, eat, toilet,

or care for himself in any manner. He has no use of his legs and

extremely limited use of his upper extremities. Mr. Matson

spends his waking hours in a wheelchair, requires continuous

care, and must be repositioned every two hours in order to

prevent pressure sor e s.

4. Mr. Matson frequently suffers from depression.

5. Medicaid, through AHCA, paid $85,896.60 for Mr. Matson’s

care. Via a Medicaid managed care plan known as Optum, Medicaid

paid an additional $32,167.31 in benefits. The sum of these

benefits, $118,063.91, constituted Mr. Matson’s entire claim for

past medical expenses.

6. Mr. Matson pursued a personal injury claim against the

limited to $305,000 .00 , and the boat owner had no other

recoverable assets. Ultimately, Mr. Matson’s personal injury

claim settled for an unallocated lump sum 2/ of $305,000.00.

7. During the pendency of Mr. Matson’s personal injury

claim, AHCA was notified of the action and asserted an $85,896.00

lien against Mr. Matson’s recovery from the perso nal injury

claim.

8. AHCA did not move to intervene or join in Mr. Matson’s

personal injury case.

9. AHCA received notice of Mr. Matson’s settlement and has

not moved to set - aside, void, or otherwise dispute the

settlement.

10. As noted above, Medicaid spent $85,896.60 on

Mr. Matson’s behalf. Application of the formula in

section 409.910(11)(f) requires that all of AHCA’s $85,896.60

lien be satisfied. 3/

11. Mr. Matson has deposited $85,896.60 in an interest

bearing account pending an administrative determination of AHCA’s

rights.

Valuation of the Personal Injury Claim

12. Jack Hill represented Mr. Matson during the personal

injury action. Mr. Hill has practiced law since 2002 and been

employed with the law firm of Searcy, Denney, Scarola, Barnha rt,

and Shipley in West Palm Beach, Florida, since August of 2004.

13. Mr. Hill is board certified in civil trial law by the

Florida Bar and has handled personal injury cases for

approximately 15 years. Mr. Hill is a member of several trial

attorney asso ciations such as the American Justice Association,

the Florida Justice Association, the Palm Beach Justice

Association, and AIG, a products liability plaintiffs’

organization.

14. Mr. Hill routinely evaluates the monetary value of

damages suffered by hi s clients. That process involves

discussing individual cases with the 28 other members of his law

firm and then forming a consensus regarding a case’s settlement

value and the damages a jury would likely award in the event of a

trial.

15. Without objec tion from AHCA, Mr. Hill was accepted as

an expert regarding the evaluation of damages.

16. If Mr. Matson’s personal injury action had gone to

trial, Mr. Hill is confident that a jury would have returned a

verdict of at least $20 million.

17. As fo r the discreet aspects of Mr. Matson’s total

damages, Mr. Hill testified that Mr. Matson’s economic damages

exceed $20 million and that his noneconomic damages, such as pain

and suffering, are $20 million.

18. Mr. Hill testified that “$305,000 was a gross ly

inadequate recovery for Derek, considering his injuries.” If one

assumes that a jury would have returned a $20 million verdict,

then the $305,000 .00 settlement represents a 1.52 percent

recovery of Mr. Matson’s total damages. If one applies that same

percentage to the individual components of the personal injury

claim, then it would be determined that Mr. Matson only recovered

1.52 percent or $1,794.57 of the $118,063.91 in past medical

expenses. This computational method shall be referred to herein

a s “the pro rata formula.”

19. Mr. Hill testified that the pro rata formula was a

reasonable methodology to ascertain how much of Mr. Matson’s past

medical expenses were recovered via the $305,00 0.0 0 settlem ent :

Q: Mr. Hill, based on a $20 million val ue of

all damages, the $305,000 settlement

represents a recovery of 1.25% of the value

of the damages. Would you agree with that?

A: 1.52%.

Q: All right. And accordingly, in this

settlement, Mr. Matson recovered 1.52% of his

claim for past medical ex penses?

A: Yes. He would have recovered 1.52% of

all aspects of his damages, including those

for past medicals that were paid on his

behalf. So, yes.

Q: And this is similar to how a jury verdict

would work, is that correct? So the jury

would assign a value to each category of

damages. But if it was determined that the

defendant, the jury determined that the

defendant was only 1.52% liable for those

damages – the jury, the judge, in entering

the judgment, would reduce each element of

damages to that 1.52% amount. Is that

correct?

A: That’s the way it works, yes.

Q: All right. So 1.52% of the $118,063.91

claim for past medical expenses, that comes

out to $1,794.57. Is that your math?

A: It is – that there was $32,167.31 paid by

private healt h insurance, and the Medicaid

paid $85,896.60. And so you take 1.52% of

$118,063.91, you get a total past recovery

for medical expenses of $1,794.57.

Q: All right. And that’s the amount you

believe should be allocated to past medical

expenses?

A: It is. Yes, Sir.

Findings Regarding the Testimony Presented at the Final Hearing

20. The undersigned finds that the testimony from Mr. Hill

was compelling and persuasive as to: (a) the total damages

incurred by Mr. Matson; (b) that Mr. Matson only re covered 1.52

percent of his total damages; and (c) that Mr. Matson only

recovered 1.52 percent of his past medical expenses.

21. Using the pro rata formula, the ratio that results from

dividing the set tlement amount by total damages, is a reasonable

met hod to determine how much of a party’s past medical expenses

were recovered through the settlement.

22. AHCA offered no evidence to counter Mr. Hill’s opinions

regarding Mr. Matson’s total damages or the past medical expenses

he recovered.

23. Accord ingly, the preponderance of the evidence

demonstrates that the total value of Mr. Matson’s personal injury

c lai m is no less than $20 million and that the $305,000.00

settlement resulted in him recovering no more than 1.52 percent

of his past medical expens es. In addition, the preponderance of

the evidence demonstrates that $1,794.57 amounts to a fair and

reasonable determination of the past medical expenses actually

recovered by Mr. Matson and payable to AHCA.

CONCLUSIONS OF LAW

24. D O AH h as 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.

25. AHCA is the agency authorized to administer Florida’s

Medicaid program. § 409.902, Fla. Stat.

26. The Medicaid program “provide[s] federal financial

assistance to States that choose to reimburse certain costs of

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

297, 301 (1980).

27. “The Medicaid program is a cooperative one. The

Federal Government pays be tween 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 determinations, collecting

and maintaining information , and administering the program.”

Estate of Hernandez v. Ag. for Health Care Admin. , 190 So. 3d

139, 141 - 42 (Fla. 3rd DCA 2016)(internal citations omitted).

28. Though participation is optional, once a State elects

to participate in the Medicaid progra m, it must comply with

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

29. One condition for receipt of federal Medicaid funds

requires states to seek reimbursement for medical expenses

incurred on behalf of Medicaid recipients, who later recover from

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

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

Hernandez , 190 So. 3d at 142 (noting that one such requirement is

that “each participating state implement a third party liability provision which requires the state to seek reimbursement for

Medicaid expenditures from third parties who are liable for

medical treatment provided to a Medicaid recipient”).

30. Consistent with this federal requirement, the Florida

Legislature enacted section 409.910, designated as the “Medicaid

Third - Party Liability Act,” 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);

see also Davis v. Roberts , 130 So. 3d 264, 266 (Fla. 5th DCA

2013)(stating that in order “[t]o comply with federal directives

the Florida legisla ture enacted section 409.910, Florida

Statutes, which authorizes the State to recover from a personal

injury settlement money that the State paid for the plaintiff’s

medical care prior to recovery.”).

31. Section 409.910(1) sets forth the Florida Legislat ure’s

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 goods and services

furnished to M edicaid 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

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 oth er 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 pa rty

become available at any time, the public

treasury should not bear the burden of

medical assistance to the extent of such

resources.

32. In addition, the Florida Legislature has authorized

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

reci pient, the provider of the recipient’s medical services, and

any person who received the third - party benefits. § 409.910(7),

Fla. Stat.

33. AHCA’s effort to recover the full amount paid for

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

provides that AHCA:

[I]s automatically subrogated to any rights

that an applicant, recipient, or legal

representative has to any third - party benefit

for the full amount of medical assistance

provided by Medicaid. Recovery pursuant to

the subrogation ri ghts 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 representa tive, a recipient’s

creditors, or health care providers shall not

defeat, reduce, or prorate recovery by the

agency as to its subrogation rights granted

under this paragraph.

See also § 409.910(6)(b)2., Fla. Stat. (providing that AHCA “is a

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

interest, and takes vested legal and equitable title free and

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

recipient, the recipient’s legal representative, his or her

creditors, or health car e providers shall not defeat or reduce

recovery by the agency as to the assignment granted under this

paragraph”).

34. AHCA’s efforts are also facilitated by the fact that

AHCA has “an 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 covered injury or

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

Stat.

35. 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).

36. Section 409.910(11)(f) provides:

N otwithstanding any provision in this section

to the contrary, in the event of an action in

tort against a third party in which the

recipient or his or her legal representative

is a party which results in a judgment,

award, or settlement from a third party, the

amount recovered shall be distributed as

follows:

1. After attorney’s 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 assista nce provided by

Medicaid.

2. The remaining amount of the recovery

shall be paid to the recipient.

3. For purposes of calculating the agency’s

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.

37. In the instant case, applying the formula in

section 409.910(11)(f) to the $305,000 .00 settlement in the

instant case results in AHCA being ow ed $85,896.60.

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

prohibits the Medicaid lien from being reduced because of

equitable considerations. However, when AHCA has not

participated in or approved a settlement, the administrative

procedure cr eated by section 409.910(17)(b) serves as a means for

determining whether a lesser portion of a total recovery should

be allocated as reimbursement for medical expenses in lieu of

the amount calculated by application of the formula in

section 409.910(11) (f).

39. Section 409.910(17)(b) provides, 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 c hapter 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

successfull y challenge the amount payable to

the agency, the recipient must prove, by

clear and convincing evidence, [4 /] that a

lesser portion of the total recovery should

be allocated as reimbursement for past and

future medical expenses [5 /] than the amount

calculat ed 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.

40. Therefore, the formula in section 409.910(11)(f),

provides an initial determinat ion of AHCA’s recovery for medical

expenses paid on a Medicaid recipient’s behalf, and

section 409.910(17)(b) sets forth an administrative procedure for

adversarial testing of that recovery. See Harrell v. State , 143

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

“should be afforded an opportunity to seek the reduction of a

Medicaid lien amount established by the statutory default

allocation by demonstrating, with evidence, that the lien amount

exceeds the amount recovered for medical expense s”).

41. Through the testimony provided by Mr. Hill,

Mr. Matson proved by a preponderance of the evidence that

$1,794.57 of the recovery represents that share of the settlement

proceeds fairly and proportionally attributable to a recovery of

past medical expenses.

42. While AHCA offered no evidence or testimony to counter

Mr. Hill’s testimony, counsel for AHCA objected to Mr. Hill

testifying that every portion of Mr. Matson’s damages claim , i.e.

past medical expenses, lo st wages, noneconomic damages, etc . , was

recovered at a rate of 1.52 percent . According to AHCA’s

counsel, such testimony was unrelated to Mr. Hill’s tender as an

expert in the evaluation of damages. 6 /

43. AHCA elab orated on this argument in its proposed final

o rder:

17. No foundation w as laid as to Mr. Hill’s

expertise or background in determining the

allocation of a settlement recovered by an

injured party, or in determining whether some

specific element of damages were “fully

recovered.” Mr. Hill’s testimony regarding

these issues wa s shallow, baseless,

conclusory, and out of his expertise . His

statements regarding the allocation are

unpersuasive and cannot be used for a finding

of fact.

* * *

19. Mr. Hill went one step further to say that Mr. Matson [recovered] 1.52% of his past

medical damages . . . but there was no

explanation as to why this portion of his

damages was recovered at the same rate.

There was no explanation of why the ratio of

the recovery amount to the full case “value” does or should match the ratio of recovered past medical expenses to the actual past

medical expenses. Indeed, there was no

evidence at all that as a factual or legal

matter Mr. Matson recovered past medical

expenses at the same rate he recovered all

his damages.

20. Without any sufficient testim ony or

evidence that the portion of Mr. Matson’s

$305,000 recovery that represents past

medical expenses is less than the $85,896.60

payable under the statute, the undersigned

cannot find that less than $85,896.60

represents recovered past medical expenses .

21. To that point, it is not proven that

each element of Mr. Matson’s damages was or

would have been recovered at the same rate as

every other element of damages.

44. In addition, AHCA cited Mojica v. Ag. for Health Care

Admin. , Case No. 17 - 1966MTR (Fla. DOAH May 3, 2018), in which the

ALJ concluded that:

The testimony is insufficient to support a

finding that the amount allocated to past

medical expenses is the amount Petitioner

recovered for past medical expenses. Without

a breakout of the alloc ation of the

settlement to other elements of damages, the

undersigned cannot determine that the amount

allocated to past medical expenses is

reasonable.

45. However, the Mojica ALJ’s rejection of using the

percentage of a petitioner’s total recovery to c alculate the

recovery of past medical expenses appears to have been driven by

a determination that the petitioner attributed an unreasonably

low valuation to her economic damages. Id. (finding that

“[g]iven the expert testimony of the extent of Petitioner ’s injuries, her need for round - the - clock assistance with all

activities of daily living, the costs of future doctor visits,

attendant care, and other considerations factored into

Petitioner’s Life Care Plan, it is not reasonable that

Petitioner’s economic damages (other than past medical expenses)

would have been valued at a mere $5 million. In fact, this flies

in the face of the economist’s determination, based on the Life

Care Plan, that the present value of Petitioner’s economic

damages was in excess o f $25 million. This exposes the flaw in

Petitioner’s method of allocating damages.”).

46. The instant case is distinguishable from Mojica because

no such flaw is readily apparent in Mr. Hill’s assessment of

damages. Nor was such a flaw identified in AHC A’s proposed final

o rder.

47. Furthermore, if a board certified civil trial attorney

who has handled personal injury cases for approximately 15 years

is not qualified to render an opinion regarding the allocation of

a damages settlement, then the unders igned is at a loss as to who

would be so qualified. See generally Brooks v. State , 762 So. 2d

879, 892 (Fla. 2000)(holding that “the trial court did not clearly err in allowing Michael Johnson, an experienced crack

cocaine dealer, to express opinion testi mony regarding the

identity and approximate weight of the rocky substance contained

in the sandwich ba g obtained from Darryl Jenkins.”); Orthopaedic

Med. Grp. of Tampa Bay/Stuart A. Goldsmith, P.A. v. Ag. for

Health Care Admin. , 957 So. 2d 18, 19 (Fla. 1st DCA 2007)(stating

that “[t]he determination of a witness’s qualifications to

express an expert opinion is within the discretion of the ALJ and

will not be reversed absent a showing of clear error.”).

48. Moreover, AHCA offered nothing to rebut Mr. Hill ’s

opinion. Thus, there was no contrary evidence to consider in

evaluating whether Mr. Matson proved by a preponderance of the

evidence that his recovery of past medical expenses was less than

AHCA’s lien. See genera l ly Giraldo v. A g. for Health Care

Adm in. , 248 So. 3d 53 , 56 (Fla. 2018) (noting that “[a]lthough a

fact finder may reject uncontradicted testimony, there must be a

reasonable basis in the evidence for the rejection.”).

49. The result herein is consistent with the First District

Court of Appeal ’s recent decision in Eady v. State of Fl orid a,

Ag ency for Health Care Admin istration , No. 1D18 - 1852, slip op.

at 15 (Fla. 1 st DCA Sept. 12, 2019)( rejecting the ALJ’s

“wholesale rejection” of the pro rata formula by holding that

“ [a] ppellant presented exp ert testimony directed towards the

appropriate share of the settlement funds to be allocated to past

medical expenses. AHCA did not present any evidence to refute

the experts’ opinions. Under our facts, there was no competent,

substantial evidence to sup port the ALJ’s findings or

conclusions. Consequently, we hold the supreme court’s decision

in Giraldo II is decisive.”).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Agency for Health Care Administration

i s entitled to $1,794.57 in satisfaction of its Medicaid lien.

DONE AND ORDERED this 18th day of September, 2019 , in

Tallahassee, Leon County, Florida.

G. W. CHISENHALL

Administrative Law Judge

Division of Administrativ e 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 September, 2019 .

ENDNOT E S

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

the 2018 version of the Florida Statutes. Th e parties stipulated

that the 2018 version was in effect when Mr. Matson settled his

personal injury claim. See Cabrera v. Ag. for Health Car e

Admin. , Case No. 17 - 4557MTR (Fla. DOAH Jan. 23, 2018)(citing

Suarez v. Port Charlotte HMA , 171 So. 3d 740 (Fla. 2d DCA 2015)).

2/ The settlement terms did not specify that certain percentages

of the total settlement amount were allocated to past me dical

expenses, economic damages, or noneconomic damages.

3/ Optum spent an additional $32,167.31 on Mr. Matson’s behalf.

Although that amount is part of Mr. Matson’s past medical

expenses, and despite Optum being a Medicaid managed care plan,

that a mount is not part of the direct Medicaid lien.

4 / The Northern District of Florida ruled that the Medicaid Act

prohibits AHCA from requiring a Medicaid recipient to

affirmatively disprove section 409.910(11)(f)’s formula - based

allocation with clear and convincing evidence. Gallardo v.

Dudek , 263 F. Supp. 3d 1247 (N.D. Fla. April 18, 2017). However,

section 120.57(1)(j) contains a default provision regarding the burden of proof and provides that “findings of fact shall be

based on a preponderance of th e evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute.” A preponderance of the evidence is defined

likely than not tends to prove a cert ain proposition.” S. Fla.

Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 871 (Fla.

2014).

5 / The Florida Supreme Court recently ruled that “federal law

allows AHCA to lien only the past medical expenses portion of a

Medicaid beneficiary’s third - par ty tort recovery to satisfy its

Medicaid lien.” Giraldo v. Ag. for Health Care Admin. , 248 So.

3d 53, 56 (Fla. 2018).

6 / The undersigned overruled this objection during the final

hearing by concluding that it pertained more to the weight that

should be given to that portion of Mr. Hill’s testimony rather

than to its admissibility.

COPIES FURNISHED:

Alexander R. Boler, Esquire

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

(eServed)

Kim Annette Kellum, Esquire

Agency for Health Care Adm inistration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello, Florida 32344

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A p arty 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 orig inal

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.