19-003235MTR Markus Smith vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, September 6, 2019.

Summary: The preponderance of the evidence demonstrated that $10,000.00 amounts to a fair and reasonable determination of the past medical expenses actually recovered by Petitioner and payable to AHCA.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARKUS SMITH,

Petitioner,

vs. Case No. 19 - 3235MTR

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal ad ministrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Administrative Hearings (ÐDOAHÑ) via video

teleconference at sites in Lakeland and Tallahassee, Florida, on

Ju ly 18 , 2019.

APPEARANCES

For Petitione r: Edward Blake Paul, Esquire

Peterson & Myers, P.A.

Post Office Box 24628

Lakeland, Florida 33802 - 4628

For Respondent: Alexander R. Boler, Esquire

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue to be det ermined is the amount Respondent, Agency

for Health Care Administration (ÐAHCAÑ), is to be reimbursed for

medical expenses paid on behalf of Markus Smith (ÐPetitionerÑ or

ÐMr. SmithÑ) pursuant to section 409.910, Florida Statutes

(2018), 1/ from settlement proceeds he 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 fo r medical expenses paid on the Medicaid recipientÓs

behalf. This mandate is facilitated by a statutory lien in

AHCAÓs favor on the settlement proceeds, and federal law mandates

that MedicaidÓs lien only applies to past medical expenses that

the Medicaid r ecipient actually recovered through the settlement .

When a Medicaid recipientÓs settlement proceeds are less than the

recipientÓs total damages (which consists of multiple components ,

such as past medical expenses, economic damages, and noneconomic

damage s), 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 recover

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

calculated via section 409.910(11)(f).

On June 14, 2019, Mr. Smith filed a ÐPetition to Determine

Subrogation InterestÑ (Ðthe PetitionÑ) to challenge AHCAÓs

imposition of a $36,596.54 lien on Mr. SmithÓs $100,000.00

settlement proceeds. Because Mr. Smith valued his total damages

as being at least $1,000,000.00, he asserted in the Petition

that :

[T] he sum of $10,000 of the settlement amount

is properly allocated to Markus SmithÓs past

medical expenses based on the devastating and

permanent injuries he sustained in th e above

referenced traffic crash. As a result, and

pursuant to Section 409.910, F.S. and the

Florida Supreme CourtÓs opinion in Giraldo v.

Agency for Health Care Administration , 248

So. 3d 52 (Fla. 2018), AHCAÓs lien only

attaches to $10,000 of the total settlement.

The parties filed a Joint Pre - hearing Stipulation

identifying stipulated facts for which no further 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 July 18, 2019.

PetitionerÓs Exhibits 1 through 23 were accepted into evidence,

and AHCAÓs hearsay objection to PetitionerÓs Exhibit 21 was noted

by the undersigned. However, AHCA based Finding of Fact 8 in its

Proposed Recommend ed Order on PetitionerÓs Exhibit 21.

Accordingly, AHCAÓs hearsay objection is deemed to be withdrawn.

Mr. Smith testified on his own behalf and presented the

testimony of Nellie Carter Smith and David Dismuke. Mr. SmithÓs

attorney identified Mr. Dismu ke as an expert witness but did not

explicitly identify Mr. Dismuke as an expert in a particular

field. Nevertheless, there is no doubt that he was being offered

as an expert in the valuation of personal injury claims, and AHCA

did not object to Mr. Dismu ke testifying about the total amount

of damages incurred by Mr. Smith.

AHCA did not call any witnesses and did not offer any

exhibits into evidence.

The parties filed timely Proposed Final Orders that were

considered in the preparation of this Final Orde r.

FINDING S OF FACT

The following Findings of Fact are based on exhibits

accepted into evidence, admitted facts set forth in the pre -

hearing stipulation, and matters subject to official recognition.

Facts Pertaining to the Underlying Personal Injury Litig ation and

the Medicaid Lien

1. On February 12, 2018, Mr. Smith was 26 years old and

working for $11.00 an hour as a custodian for E&A Cleaning at All

Saints Academy , in Winter Haven, Florida. While leaving the

school just before 9:00 a.m., Mr. Smith cam e to a traffic light

at the schoolÓs entrance. Wh en the light turned green and

Mr. Smith moved into the intersection, another car ran the red

light and slammed into the driverÓs side of Mr. SmithÓs vehicle.

2. Mr. Smith was severely injured and transpor te d to

Lakeland Regional Medical C enter where he stayed until

approximately April 13, 2019.

3. Mr. SmithÓs injuries included, but were not limited to,

a collapsed lung, altered mental state, intracerebral hemorrhage,

traumatic subdural hematoma, traumat ic subarachnoid hemorrhage

with loss of consciousness, traumatic intraventricular

hemorrhage, lumbar transverse process fracture, and a left ankle

fracture.

4. Mr. Smith required surgery to repair his left ankle, and

he now walks with a severe limp. He experiences a constant, dull

ache in his left ankle and is unable to walk any significant

distance without experiencing severe pain.

5. It is very difficult for Mr. Smith to stand, and he has

a constant fear of falling because his balance is Ðterrible.Ñ

6 . Mr. Smith is left - handed, and the accident left him with

very limited use of his left hand.

7. Since the accident, Mr. SmithÓs vision has been blurry,

and he suffers from double vision. He believes that his impaired

vision would prevent him from obt aining a driverÓs license.

8. A s described above in paragraph 3, Mr. Smith suffered a

brain injury during the accident, and there was some bleeding

inside his skull. He now has difficulty forming long - term

memories and often records conversations so th at he has a record

of what was said.

9. Since the accident, Mr. Smith has been struggling with

anger and depression. He has difficulty controlling his anger

and is prone to random outbursts of rage. He has experienced

suicidal thoughts and asked his cur rent caretaker if she would

kill him , if he gave her a knife.

10. Since being released from the hospital, Mr. Smith has

not received any physical or occupational therapy. He was

receiving some mental health treatment and taking medicine to

treat his de pression and memory issues. However, he cites a lack

of transportation as to why he is no longer receiving any care.

11. Mr. Smith has not worked since the accident, and the

Social Security Administration has determined that he is

disabled.

12. After leaving the hospital, Mr. Smith stayed with his

girlfriend. After they separated, Mr. Smith lived with his

father. Since November of 2018, he has been living with his

fatherÓs ex - wife in Georgia.

13. Mr. Smith, through counsel, filed a lawsuit against the

driver and owner of the car that slammed into him. They settled

Mr. SmithÓs claims for the available policy limits of

$100,000.00. There was no other liable person or other insurance

available to Mr. Smith to compensate him for his injuries.

14. AH CA provided $74, 312.38 in Medicaid benefits to

Mr. Smith and determined through the formula in section

409.910(11)(f), that $36,596.54 of Ms. SmithÓs settlement

proceeds was subject to the Medicaid lien.

15. Mr. Smith, through counsel, deposited the en tire

settlement proceeds of $100,000.00 into an interest bearing

account pending resolution of AHCAÓs interest.

Valuation of the Personal Injury Claim

16. David Dismuke was identified as Mr. SmithÓs expert

witness. Since 2012, Mr. Dismuke has been a board - certified

trial lawyer, and approximately one percent of attorneys in

Florida possess that credential. That designation essentially

means that an attorney can represent that he or she is an expert

in civil trial practice.

17. Mr. Dismuke has his ow n law practice and has handled at

least 34 civil jury trials. Over the course of his 18 - year legal

career, he has assessed the value of at least 2,000 personal

injury cases, including ones involving brain injuries.

18. Mr. Dismuke also has extensive expe rience in valuing

the individual components of a damages award:

Q: Before we get to this final opinion,

Mr. Dismuke, in your practice, have you had

to allocate portions of settlements between

past medical expenses, usual medical

expenses, and the other e lements of damages?

A: Many times.

Q: And for what purpose would you do that

sort of allocation?

A: We do it, we do it frequently. We do it

often times in situations just like this,

where weÓre trying to determine what an

appropriate amount would b e for either a

Medicare or Medicaid lien, health insurance

liens, we deal with it in situations, and we

have lien issues on almost every case.

Q: And do you also do it when you are trying

to help clients figure out how, and in what

manner, to structure t heir settlements, so

they can have enough money for their future

medical expenses and pay their old medical

expenses?

A: Yes, we do. And in fact to make another

point, every single case I have to allocate

[] the value [of past medical expenses],

thatÓs one element of damages, what the value

of future [medical expenses] is, thatÓs

another element of damages, past lost wages,

another element of damages, future lost

wages, another element of damages, pain and

suffering, inconvenience, you know, the

nonecono mic stuff. Every case we make these,

we make these determinations. ThatÓs how we

come to total value on every case that we

settle or get a verdict on.

Q: And even on the ones that you settle for

less than full value, are you still

performing that sam e evaluation of the

allocation of the various elements of

damages?

A: Yes sir.

19. Mr. Dismuke has similar experience with Medicare set

asides:

Q: Now, another area where you allocate

between elements of damages is where you

require a Medicare set a side, isnÓt that

true?

A: ThatÓs correct.

Q: Now, tell the court what a Medicare set

aside is?

A: A Medicare set aside is something that we

put in place to protect the future interest

of Medicare for when thereÓs a settlement.

So we receive a large settlement that the

person is still going to require future

medical care, so we have to evaluate what is

a reasonable amount of that settlement to set

aside to protect MedicareÓs future interests,

so the client doesnÓt just get a windfall

from the settleme nt.

Q: And have you done that?

A: Multiple times.

Q: And that requires you to evaluate the

total settlement and allocate between past

medical expenses, future medical expenses,

pain and suffering and other elements of

damages?

A: ThatÓs correct.

2 0. In Mr. DismukeÓs opinion, Mr. SmithÓs total damages

easily amount to $1 million and could be as high as $2 to

$3 million.

21. Mr. Dismuke values Mr. SmithÓs lost wages at no less

than $750,000.00. While Mr. Smith is not currently receiving

medica l treatment, Mr. Dismuke believes those expenses would

amount to hundreds of thousands of dollars and possibly millions

of dollars. However, the damages resulting from Mr. SmithÓs pain

and suffering would be the largest component of his total

damages.

22. Mr. Dismuke believes that Mr. SmithÓs past medical

expenses would be the smallest component of his total damages

given Mr. SmithÓs age, future needs, and lost wages.

23. With regard to allocating $10,000.00 of Mr. SmithÓs

total recovery to past medical expenses, Mr. Dismuke testified

that a Ð$10,000 allocation of the $100,000 settlement is

perfectly reasonable if not, more than generous, given the past

[medical expenses] in this case of around $70,000. So setting

forth ten percent of that is a g enerous allocation for past

medical expenses.Ñ

Findings Regarding the Testimony Presented at the Final Hearing

24. The undersigned finds that the testimony from

Mr. Dismuke was compelling and persuasive as to the total damages

incurred by Mr. Smith. While attaching a value to the damages

that a plaintiff could reasonably expect to receive from a jury

is not an exact science, Mr. DismukeÓs considerable experience

with litigating personal injury lawsuits makes him a very

compelling witness regarding the valuation of damages suffered by

an injured party such as Mr. Smith.

25. The undersigned also finds that Mr. Dismuke was

qualified to present expert testimony as to how a damages award

should be allocated among its components , such as past medical

exp enses, economic damages, and noneconomic damages. 2/

26. AHCA offered no evidence to counter Mr. DismukeÓs

opinions regarding Mr. SmithÓs total damages or the past medical

expenses he recovered.

27. Accordingly, it is found that the preponderance of t he

evidence demonstrates that the total value of Mr. SmithÓs

personal injury claim is no less than $1 million and that the

$100,000.00 settlement resulted in him recovering no more than

10 percent of his past medical expenses. In addition, the

prepondera nce of the evidence demonstrates that $10,000.00

amounts to a fair and reasonable determination of the past

medical expenses actually recovered by Mr. Smith and payable to

AHCA.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdicti on over the subject matter and the parties in this case

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

Statutes.

29. AHCA is the agency authorized to administer FloridaÓs

Medicaid program. § 409.902, Fla. Stat.

30. 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).

31. ÐThe Medicaid program is a cooperative one. The

Federal Government pays b etween 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 informatio n, 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).

32. Though par ticipation is optional, once a s tate elects

to participate in the Medicaid progr am, it must comply with

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

33. One condition for receipt of federal Medicaid funds is

that states must seek reimbursement for medical expenses incurred

on behalf of Medicaid recipients who later recover from le gally

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 Ðeach

participating state implement a third party liability provision

which requires the state to seek reimbursement for Medicaid

expenditures from third parties who are liable for medical

treatment provided to a Medicaid recipientÑ).

34. Consistent with this federal requirement, the Florida

Legislature enacte d 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. 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 Ð[t]o comply with federal directives

the Florida legislatur e 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).

35. Section 409.910(1) sets forth the Florida Legislature Ós

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 Medi caid 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 th e 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.

36. In addition, the Florida Legislature has authorized

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

recipie nt, the provider of the recipientÓs medical services, and

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

Fla. Stat.

37. AHCAÓs efforts 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 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 righ ts 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 representati ve, a recipientÓs

creditors, or health care providers shall not

defeat, reduce, or prorate recovery by the

agency as to its subrogation rights granted

under this paragraph.

See also £ 409.910(6)(b)2., Fla. Stat. (providing that AHCA Ðis a

bona fide ass ignee for value in the assigned right, title, or

interest, and takes vested legal and equitable title free and

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

recipient, the recipientÓs legal representative, his or her

creditors, or health care providers shall not defeat or reduce

recovery by the agency as to the assignment granted under this

paragraphÑ).

38. AHCAÓs efforts are also facilitated by the fact that

AHCA has Ðan automatic lien for the full amount of medical

assistance provided by M edicaid to or on behalf of the recipient

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

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

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

Stat.

39. The amount to b e recovered by AHCA from a judgment,

award, or settlement from a third party is determined by a

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).

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

Notwi thstanding 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 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 o f medical assistance

provided by Medicaid. For purposes of this

paragraph, Ðmedical coverageÑ means any

benefits under health insurance, a health

maintenance organization, a preferred

provider arrangement, or a prepaid health

clinic, and the portion of be nefits

designated for medical payments under

coverage for workersÓ compensation, personal

injury protection, and casualty.

41. In the instant case, applying the formula in

section 409.910(11)(f) to the $100,000.00 settlement results in

AHCA being owed $ 36,596.54 in order to satisfy the lien.

42. 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 ad ministrative

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 reimbursement for medical expenses in lieu of the

amount calculated by application of the formula in section

409.910(11)(f).

43. 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 f iling 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 prove, by

clear and convincing evidence, [3/] that a

lesser portion of the total recovery should

be allocated as reimbursement for past and

future medical expenses [4/] 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.

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

provi des an initial determination of AHCAÓs recovery for medical

expenses paid on a Me dicaid recipientÓs 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)(stating that petitioner

Ðshould be afforded an opportunity to seek the reduction of a

Medicaid lien amount established by the statutory default

allocation by demonstrating, with evidence, that the lien amount

exceeds the amount reco vered for medical expensesÑ).

45. Through the test imony provided by Mr. Dismuke,

Mr. Smith proved by a preponderance of the evidence that

$10,000.00 of the recovery represents that share of the

settlement proceeds fairly and proportionally attributable t o a

recovery of past medical expenses.

46. While AHCA offered no evidence to counter Mr. DismukeÓs

testimony, AHCA did argue during the final hearing that

Mr. Dismuke was not qualified to render an expert opinion as to

what portion of total damages amoun ts to a recovery of an

individual component of damages , such as past medical expenses.

47. Mr. DismukeÓs testimony demonstrated that he had

considerable experience making such determinations. In addition,

if a board - certified personal injury attorney is not qualified to

make such determinations, the undersigned is at a loss as to who

would be so qualified. See generally 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)(statin g that Ð[t]he

determination of a witnessÓs qualifications to express an expert

opinion is within the discretion of the ALJ and will not be

reversed absent a showing of clear error.Ñ).

48. In its Proposed Final Order, AHCA cited Mojica v. Ag.

for Health C are Admin. , Case No. 17 - 1966MTR (Fla. DOAH May 3,

2018), in support of an argument that Mr. Smith failed to prove

that each element of his damages Ðwas or would have been

recovered at the same rate as every other element of damages.Ñ

In Mojica , the ALJ co ncluded 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 allocation of the

settlement to other elements of damages, the

undersigned cannot determine that the amount

allocated to past medical expenses is

reasonable.

49. However, the Mojica ALJÓs rejection of using the

percentage of a petitionerÓs total recovery to calculate the

recovery of past medical expense s appears to have been driven by

a determination that the petitioner attributed an unreasonably

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

Ð[g]iven the expert testimony of the extent of PetitionerÓs

injuries, her need for round - the - clock ass istance with all

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

attendant care, and other considerations factored into

PetitionerÓs Life Care Plan, it is not reasonable that

PetitionerÓs economic damages (other than past medical expenses)

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

in the face of the economistÓs determination, based on the Life

Care Plan, that the present value of PetitionerÓs economic

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

Peti tionerÓs method of allocating damages.Ñ).

50. The instant case is distinguishable from Mojica because

no such flaw is readily apparent in Mr. DismukeÓs assessment of

damages. Nor was such a flaw identified in AHCAÓs Proposed Final

Order.

51. In the Jo int Pre - hearing Stipulation and his Proposed

Final Order, Mr. Smith argues that AHCAÓs reimbursement should be

limited to $2,846.54. Mr. SmithÓs calculation starts with the

$10,000.00 recovered for past medical expenses and then subtracts

attorneyÓs fees of $2,500.00 and taxable costs of $1,806.91. The

resulting amount of $5,693.09 is then divided by two to reach

$2,846.54. However, this computation appears to be based on a

misapprehension of the formula set forth in section

409.910(11)(f). As noted abo ve, that formula starts with the

total amount recovered from a third party and then deducts

attorneyÓs fees and costs to reach a figure that is divided by

two in order to calculate how much of a settlement is subject to

the Medicaid lien. A petitioner can then challenge that

calculation via the process set forth in section 409.910(17)(b).

ORDER

Based on the foregoing Findings of Fact and Conclusions

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

Administration is entitled to $10,000.00 in satisfacti on of its

Medicaid lien.

DONE AND ORDERED this 6th day of September, 2019 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee 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 6th day of September, 2019 .

ENDNOTE S

1/ Unless stated otherwise, all sta tutory references will be to

the 2018 version of the Florida Statutes. That version of the

Florida Statutes was in effect when Mr. Smith settled his

personal injury claim. See Cabrera v. Ag. for Health Care

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/ While AHCA acknowledged that Mr. Dismuke had a background in

determining the value of damages, AHCA argued during the final

hearing that he had no Ðexpertise or abilit y to determine a

proper allocation of a settlement.Ñ In other words, AHCA argued

that Mr. Dismuke was not qualified to offer an opinion as to what

portion of Mr. SmithÓs total recovery amounted to his recovery of

past medical expenses. The undersigned ov erruled the objection

during the final hearing without prejudice to AHCA renewing that

objection in its proposed final order. AHCA did renew the

objection, and it is further addressed in the Conclusions of Law.

3/ The Northern District of Florida ru led that the Medicaid Act

prohibits AHCA from requiring a Medicaid recipient to

affirmatively disprove section 409.910(11)(f)Ós 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 Ðfindings of fact

shall be based on a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwi se provided by statute.Ñ A preponderance of the evidence

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

that Ðmore likely than not tends to prove a certain proposition.Ñ

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

(Fla. 2014).

4/ The Florida Supreme Court recently ruled that Ðfederal law

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

Medicaid beneficiaryÓs third - party tort recovery to satisfy its

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

3d 53, 56 (Fla. 2018) .

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Alexander R. Boler, Esquire

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2073 Summit Lake Drive

Tallahassee, Florida 32317

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Kim Annette Kellum, Esquire

Agency for Health Care Administration

Mail Stop 3

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Tallah assee, Florida 32308

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Edward Blake Paul, Esquire

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Mary C. Mayhew, Secretary

Agency for Health Care Administration

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Stefan Grow, General Counsel

Agency for Health Care Administration

Mail Stop 3

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Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

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Thomas M. Hoeler, Esquire

Agency for Health Care Administration

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NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Fin al 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.