19-003852MTR Elisha Loebell, Deceased, By And Through Sylvia Loebell As Administrator Of The Estate Of Elisha Loebell vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, December 13, 2019.

Summary: Petitioner proved, by a preponderance of the evidence, that $58,506.76 represents a fair and reasonable determination of past medical expenses actually recovered by Petitioner and payable to AHCA.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELISHA LOEBELL, DECEASED, BY AND

THROUGH SYLVIA LOEBELL AS

ADMINISTRATOR OF THE ESTATE OF

ELISHA LOEBELL ,

Petitioner ,

Case No. 19 - 3852MTR

vs.

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Respondent .

/

FINAL ORDER

On October 17, 2019, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division) conducted a duly - noticed hearing in Tallahassee,

Florida.

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 is sue for the undersigned to determine is the amount

payable to Respondent, Agency for Health Care Administration

(AHCA), as reimbursement for medical expenses paid on behalf of

Petitioner Elisha Loebell, deceased, by and through Sylvia

Loebell, as administr ator of the estate of Elisha Loebell

(Petitioner), pursuant to section 409.910, Florida Statutes

(2018), from settlement proceeds Petitioner received from a third

party.

PRELIMINARY STATEMENT

On July 18, 2019, Petitioner filed a Petition to Determine

Amoun t Payable to Agency for Health Care Administration in

Satisfaction of Medicaid Lien (Petition). The Petition

challenged AHCA’s placement of a Medicaid lien in the amount of

$372,654.33 on Petitioner’s $1,000,000 .00 settlement proceeds

from a third party.

Prior to the final hearing, the parties filed a Joint Pre -

hearing Stipulation that contained a statement of admitted and

stipulated facts for which no further proof would be necessary.

The undersigned has incorporated those stipulated facts into the

Findi ngs of Fact below, to the extent necessary.

The final hearing commenced as scheduled on October 17,

2019. A t the final hearing, Petitioner presented the testimony

of two expert witnesses: Charles Zauzig, Esquire, and R. Vinson

Barrett, Esquire. The unde rsigned accepted Petitioner’s Exhibits

P1 through P9, without objection. Additionally, at Petitioner’s

unopposed request, the undersigned took official recognition of

the following two final orders that the Division issued: Hunt v.

Ag. for Health Care Ad min. , Case No. 13 - 4684MTR (Fla. DOAH

Sept. 10, 2015); and Delgado v. Ag. for Health Care Admin. , Case

No. 16 - 2084MTR (Fla. DOAH Nov. 30, 2016). See Fla. Admin. Code

R. 28 - 106.213(6). AHCA did not call any witnesses and did not

offer any exhibits at the final hearing.

The Transcript of the final hearing was filed with the

Division on November 15, 2019. Both parties timely filed

proposed final orders, which the undersigned has considered in

the preparation of this Final Order.

All references are to the 20 18 codification of the Florida

Statutes , unless otherwise indicated.

FINDING S OF FACT

1. AHCA is the state agency charged with administering the

Florida Medicaid program, pursuant to chapter 409.

2. On March 12, 2012, Sylvia Loebell (Sylvia), who was 37

weeks pregnant with Elisha Loebell (Elisha), was traveling with

her husband through Virginia. Sylvia began experiencing severe

back, left flank, and abdominal pain and presented to the

emergency room. She was transferred to a hospital where she was

given morphine, antibiotics for a suspended kidney infection, and

anti - nausea medicine. On or about March 15, 2012, delivery was

induced. During the early morning hours of March 16, 2012,

extreme difficulty was experienced in the delivery and a vacuum

was app lied to Elisha’s head. During this time, Sylvia requested

delivery via C - section , but the request was ignored. Further,

during the delivery process, the medical staff failed to monitor

or recognize extreme fetal distress. Eventually, at

5:07 a.m., Elis ha was delivered. Elisha’s head was severely

bruised, swollen, bleeding, and blistered. She was not breathing

and required resuscitation. Elisha was taken to the Neonatal

Intensive Care Unit (NICU), but the pediatrician on duty did not

arrive in the NIC U until over four hours after Elisha was born,

and a neonatologist was not consulted until 24 hours after birth.

3. Elisha was diagnosed with catastrophic brain damage due

to a lack of oxygen to the brain during and after birth. Due to

this catastrophic brain damage, Elisha suffered from quadriplegic

cerebral palsy, seizures, global development delay, bilateral

cervical blindness, temperature instability, and microcephaly.

Elisha was G - tube dependent and required a tracheostomy. After

three years of suf fering from her extensive birth injuries,

Elisha died on April 2, 2015.

4 . Elisha was survived by her mother, Sylvia, and her

father, Matthew Loebell, who are married and who reside in

Florida.

5 . Elisha’s medical care related to her injury was paid by

M edicaid, and AHCA through the Medicaid program provided

$372,654.53 in benefits associated with her injury. This

$372,654.54 represents the entire claim for past medical

expenses.

6 . The costs associated with Elisha’s funeral totaled

$3,000 .00 , which her surviving parents paid.

7 . Sylvia was appointed the administrator of the estate of

Elisha.

8 . Petitioner filed a lawsuit for medical malpractice and

wrongful death in Virginia to recover both the individual damages

of Elisha’s surviving parents and the individual damages of

Petitioner against the medical providers and staff who were

responsible for Elisha’s care at the time of her birth (Virginia

Defendants).

9 . During the pendency of Petitioner’s lawsuit against the

Virginia Defendants, Petitioner no tified AHCA of the lawsuit, and

AHCA asserted a Medicaid lien of $372,654.53 against Petitioner’s

lawsuit and settlement of that action.

10 . Petitioner settled the lawsuit for medical malpractice

and wrongful death with the Virginia Defendants for

$1,000, 000. 00 . Those parties executed a Settlement Agreement and

Full and Final Release (Release), which stated, in part:

Although it is acknowledged that this

settlement does not fully compensate Elisha

Loebell for all of the damages she has

allegedly suffered, this settlement shall

operate as a full and complete Release as to

Releases without regard to this settlement

only compensating Elisha Loebell for a

fraction of the total monetary value of her

alleged damages. The parties agree that

Elisha Loebell’s alle ged damages have a value

in excess of $6,372,654.53, of which

$372,654.54 represents Elisha Loebell’s claim

for past medical expenses. Given the facts,

circumstances, and nature of Elisha Loebell’s

injuries and this settlement, the parties

have agreed to allocate $58,506.76 of this

settlement to Elisha Loebell’s claim for past

medical expenses and allocate the remainder

of the settlement towards 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 claimed

total monetary value of all [of] Elisha

Loebell’s alleged damages.

1 1 . AHCA did not commence a civil action to enforce its

rights under section 409.910 or intervene in Petitioner’s l awsuit

against the Virginia Defendants.

12 . AHCA has not sought to set aside, void, or otherwise

dispute the settlement of Petitioner’s lawsuit.

1 3 . Application of the formula set forth in

s ection 409.910(11)(f) to Petitioner’s $1,000,000 .00 settlement

authorizes payment to AHCA of $331,682.12.

Expert Witness Testimony

Testimony of Charles J. Zauzig, III

1 4 . Petitioner presented the testimony of Charles J.

Zauzig, III, the lead trial attorney who litigated Petitioner’s

lawsuit against the Virginia Defen dants. Mr. Zauzig is a partner

with the law firm of Nichols Zauzig in Woodbridge, Virginia.

Mr. Zauzig has been a trial attorney for 40 years and focuses his

practice on representing parties in medical malpractice cases

involving catastrophic injuries a nd death.

1 5 . Mr. Zauzig tries, on average, three to four jury

trials, per year, that result in a verdict. He testified that he

is familiar with meeting with injured clients, reviewing medical

records, reviewing expert reports, interviewing and deposing fact

witnesses, and preparing cases for trial. He further testified

that he regularly reviews jury verdict reports in Virginia, and

discusses cases, including valuation and jury verdicts, with

other attorneys. Mr. Zauzig testified that as a routine part of

his practice, he assesses the value of damages that injured

clients have suffered.

1 6 . Mr. Zauzig is a member of several trial attorney

associations, including the Virginia Trial Lawyers Association,

American College of Trial Lawyers, American Associat ion of

Justice, Southern Trial Lawyers Association, American Board of

Trial Advocacy, and the International Academy of Trial Lawyers.

Mr. Zauzig served on the American Association of Justice’s Board

of Governors and chaired its Medical Negligence Group.

1 7 . Petitioners moved, and the undersigned accepted,

Mr. Zauzig as an expert in the valuation of damages. AHCA did

not oppose Mr. Zauzig’s designation as an expert.

1 8 . As part of his representation of Petitioner in the

lawsuit against the Virginia Defe ndants, Mr. Zauzig met with

fact and expert witnesses concerning her care. Mr. Zauzig

explained that during birth, Elisha suffered catastrophic brain

damage as a result of being forced into her mother’s pelvis

repeatedly during contractions, which were induced through

administration of drugs. He further explained that Elisha

suffered catastrophic brain damage that resulted in Elisha having

severe cerebral palsy, with additional issues such as blindness,

respiratory failure, inability to regulate her body temperature,

seizures, and difficulties with feeding that required the use of

a G - tube. Because of this catastrophic brain damage and

resulting issues, Elisha required constant care, much o f which

her parents provided.

1 9 . Mr. Zauzig testified that after three years, Elisha

passed away as a result of her birth injuries. Mr. Zauzig stated

a result of her death.

20 . Mr. Zauzi g testified that under the Virginia Wrongful

Death Act, damages may include the parents’ mental pain and

suffering from the date of injury through death of their child,

as well as sorrow thereafter, and medical expenses. See Va. Code

Ann. §§ 8.01 - 50 throu gh 8.01 - 95 (2018). He testified that based

on his professional training and experience, including a review

of comparable Virginia jury verdicts, the damages suffered in the

Petitioner’s lawsuit against the Virginia Defendants had a value

in excess of $6,3 72,654.53. Mr. Zauzig noted that one of his

first medical malpractice trials involving a brain injury at

birth resulted in a $6,000,000 .00 verdict, in which each parent

received a $3,000,000 .00 verdict. Mr. Zauzig also testified that

in 2002, a jury retu rned a verdict of $6,000,000 .00 to the

surviving parents of an infant wrongful death in a comparable

venue in Virginia. Mr. Zauzig stated that these comparable

verdicts supported his valuation of Petitioner’s damages being in

excess of $6,000,000. 00 .

2 1 . Mr. Zauzig testified that Petitioner could also

recover, under the Virginia Wrongful Death Act, Elisha’s past

medical expenses, which totaled $372,654.53. Thus, he concluded

that it would be reasonable to value the combined damages at

$6,372,654.53.

2 2 . Mr. Zauzig admitted that the theory of liability and

causation in the Petitioner’s lawsuit — that the medical

professionals should have stopped the drugs given to induce

delivery when they determined the baby was in distress and should

have instead performe d a caesarian section — was novel and

controversial. He testified that many experts disagree over

whether this theory of liabi lity was the cause of the injuries

Elisha suffered. Mr. Zauzig believed that the Virginia

Defendants would vigorously defend this case on the issues of

causation and standard of care, and that he expected that they

would attack these issues in pre - trial motions.

2 3 . Mr. Zauzig testified that based on these concerns, the

parties settled this lawsuit for $1,000,000. 00 . He further

tes tified that this settlement did not fully compensate Elisha’s

parents and Petitioner for the full value of damages. He

testified that based on a valuation of all damages of

$6,372,654.53, the $1,000,000 .00 settlement represented a

recovery of 15.7 percent of the value of the damages recovered in

the $1,000,000 .00 settlement. According to Mr. Zauzig, as

Elisha’s parents and Petitioner only recovered 15.7 percent of

the value of the damages, it would be reasonable to allocate 15.7

percent of the claim for p ast medical expenses ($372,654.53), or

$58,506.76.

2 4 . Mr. Zauzig noted that in the Release, the Virginia

Defendants agreed that the damages had a value in excess of

$6,372,654.53, of which $372,654.53 represented the claim for

past medical expenses. He further noted that the parties to the

Release agreed to allocate $58,506.76 of the settlement to past

medical expenses, which he further testified was reasonable.

Testimony of R. Vinson Barrett

2 5 . Petitioner also presented the testimony of Mr. Barrett,

a trial attorney with over 40 years of experience, who is a

partner with the law firm of Barrett, Nonni and Homola, P.A., in

Tallahassee. Mr. Barrett dedicates his legal practice to

representing plaintiffs in personal injury and wrongful death

lawsuits. Mr. Barrett has conducted numerous jury trials and has

represented clients with catastrophic brain injuries.

26 . Mr. Barrett testified that he routinely reviews jury

verdict reports and makes assessments concerning the value of

damages that injured partie s have suffered. He also explained

the process for making these assessments. He further testified

that he is familiar with settlement allocation in the context of

health insurance liens, Medicare set - asides, and workers’

compensation liens.

2 7 . The Divi sion and other courts have accepted Mr. Barrett

as an expert in the evaluation and valuation of damages.

Petitioners moved, and the undersigned accepted, Mr. Barrett as

an expert in the valuation of damages. AHCA did not oppose

Mr. Barrett’s designation as an expert.

2 8 . Mr. Barrett testified that he was familiar with

Elisha’s injuries and Petitioner’s lawsuit for medical

malpractice and wrongful death against the Virginia Defendants.

He detailed the cause of her injury, the level of round - the - clock

ca re Elisha required for her short life, and the impact and

trauma her parents suffered as a result of her injuries and

death.

2 9 . Mr. Barrett opined, based on his review of Virginia and

Florida jury verdicts, that a conservative estimate of the

overall val ue of the damages would be $3,000,000 .00 per parent,

along with the past medical expenses of $372,654.53, for a total

valuation of $6,372 , 654.53.

30 . Mr. Barrett testified that Petitioner and the Virginia

Defendants settled the lawsuit for $1,000,000 .00 , which did not

fully compensate Elisha’s parents. Mr. Barrett opined that using

his conservative valuation of $6,372,654.53, the $1,000,00 0 .00

settlement represented a 15.7 percent recovery of the value of

the damages. Mr. Barrett further testified that b ecause the

settlement represented 15.7 percent of the damages, an allocation

of 15.7 percent of the claim for past medical expenses, or

$58,506.76, was reasonable and appropriate.

Ultimate Findings of Fact

3 1 . The undersigned finds that the testimony of M r. Zauzig

and Mr. Barrett was credible and persuasive as to the total

damages incurred by Petitioner. Mr. Zauzig’s extensive

experience in litigating catastrophic injuries and death, and

medical malpractice actions, along with his experience as the

lead t rial counsel in Petitioner’s lawsuit against the Virginia

Defendants, made him a compelling witness regarding the valuation

of damages that Petitioner suffered, and the allocation of

damages. Mr. Barrett’s vast experience as a trial lawyer, who

has previo usly testified numerous times before the Division and

other courts regarding valuation and allocation of damages,

similarly made him a credible witness regarding the valuation and

allocation of damages in Petitioner’s lawsuit against the

Virginia Defendant s.

3 2 . AHCA’s attorney cross - examined Mr. Zauzig and

Mr. Barrett on some of the underpinnings of how each reached

their opinions, but ultimately offered no evidence to counter

these expert opinions regarding Petitioner’s total damages or the

past medical expenses recovered.

33 . Accordingly, the undersigned finds that the

preponderance of the evidence establishes that the total value of

Petitioner’s medical malpractice and wrongful death claim is

$6,372,654.53, and that the $1,000,000 .00 settlement result ed in

Petitioner recovering 15.7 percent of Elisha’s past medical

expenses. In addition, the preponderance of the evidence

establishes that $58,506.76 amounts to a fair and reasonable

determination of the past medical expenses actually recovered by

Petiti oners and payable to AHCA.

CONCLUSIONS OF LAW

3 4 . The Division has jurisdiction over the subject

matter and the parties to this proceeding in accordance with

sections 120.57(1) and 409.910(17), Florida Statutes.

3 5 . AHCA is the agency authorized to ad minister Florida’s

Medicaid program. § 409.902, Fla. Stat.

36 . Petitioner, as administrator of the Medicaid

recipient’s estate, is the proper party to bring this

administrative proceeding. See Al Batha v. Ag. for Health Care

Admin. , 263 So. 3d 817, 819 (Fla. 1st DCA 2019); Delgado v. Ag.

for Health Care Admin. , 237 So. 3d 432, 2018 Fla. App. LEXIS

1012, at *13 - 14 (Fla. 1st DCA Jan. 26, 2018).

37 . The burden of proof to challenge a statutory lien has

been questioned in a recent federal court decision. S ee Gallardo

v. Dudek , 263 F. Supp. 3d 1247 (N.D. Fla. 2017). The Gallardo

court held that the provision of section 409.910 that places a clear and convincing burden of proof on the Medicaid recipient to provide “that the portion of the total recovery whic h should be

allocated as past . . . medical expenses is less than the amount

calculated by the agency pursuant to the formula set forth in

anti - lien and anti - recovery provisions. See Id. at 1259 - 60. The

Gallardo court enjoined AHCA from requiring this clear and

convincing burden of proof. Section 120.57(1)(j) contains a

default provision regarding the burden of proof and states 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 as “the greater weight of the evidence,”

or evidence that “more likely than not tends to prove a cert ain

proposition.” S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC ,

139 So. 3d 869, 871 (Fla. 2014). Accordingly, the undersigned

has applied the preponderance of the evidence burden of proof in

this proceeding. 1/

38 . Medicaid is a cooperative federal - sta te medical

assistance program. See 42 U.S.C. § 1396, et. seq. Florida has

elected to participate in this program, and thus must comply with federal Medicaid statutes and regulations. See Wilder v.

Virginia Hosp. Ass’n , 496 U.S. 498 (1990); Public Health Trust of

Dade Co. v. Dade Co. Sch. Bd. , 693 So. 2d 562, 564 (Fla. 3d DCA

1997).

3 9 . The federal Medicaid program requires every

participating state to implement a third - party liability

provision that authorizes a state to seek reimbursement for

Medicaid expenditures from third parties when those resources

become available. See 42 U.S.C. § 1396a(a)(25); § 409.910(4),

Fla. Stat. To accomplish this, section 409.910(6) establishes that AHCA is automatically assigned any rights a Medicaid

recipient has to th ird - party benefits. Section 409.910(1)

states, in part:

It is the intent of the Legislature that

Medicaid be the payor of last resort for

medically necessary goods and services

furnished to Medicaid recipients. All other

sources of payment for medical ca re 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 a nd prior to

any other person, program, or entity.

Medicaid is to be paid in full from, and to

the extent of, any third - party benefits,

regardless of whether a recipient is made

whole or other creditors paid.

40 . In addition, section 409.910(7) authorize s AHCA to

recover pay ments paid from any third party, the recipient , the

provider of the recipient’s medical services or any person who

received the third - party benefits.

4 1 . Section 409.910(6)(a) provides AHCA’s procedure to

recover the full amount paid for medical assistance, as follows:

The agency is automatically subrogated to any

rights that an applicant, recipient, or legal

representative has to any third - party benefit

for the full amount of 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 o r

her legal representative, 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.

4 2 . Section 409.910(11)(f) provides a formula to establis h

the amount AHCA may recover from a settlement, as follows:

(f) Notwithstanding 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 wh ich 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

sh all 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 agency’s

recovery of medical assistance benefits pai d,

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 shal l be

entitled to all medical coverage benefits up

to the total amount of medical assistance

provided by Medicaid. For purposes of this

paragraph, “medical coverage” 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 workers’ compensation, personal

injury protection, and casualty.

43 . In the instant matter, applying the formula set forth

in section 409.910(11)(f), to the $1,000,000 .00 settlement,

results in AHCA being owed $331,682.12 to satisfy the Medicaid

lien. Petitioner, however, asserts that a lesser amount is owed

to AHCA.

44 . Section 409.910(17)(b) provides an administrative

procedu re for determining whether a lesser portion of the total

recovery should be allocated as reimbursement for past medical

expenses, instead of the amount calculated pursuant to

section 409.910(11)(f). Section 409.910(17)(b) provides, in

pertinent part:

A r ecipient may contest the amount designated

as recovered medical expense damages payable

to the agency pursuant to the formula

specified in paragraph (11)(f) by filing a

petition under chapter 120 within 21 days

after the date of payment of funds to the

age ncy 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). The petition

shall be filed with the Division of

Administrative Hearings. . . . In order to

success fully challenge the amount designated

as recovered medical expenses, the recipient

must prove, by clear and convincing evidence,

that the portion of the total recovery which

should be allocated as past and future

medical expenses is less than the amount

ca lculated by the agency pursuant to the

formula set forth in paragraph (11)(f).

Alternatively, the recipient must prove by

clear and convincing evidence that Medicaid

provided a lesser amount of medical

assistance than that asserted by the agency.

The unde rsigned notes , as stated in paragraph 3 7 above, that the

preponderance of the evidence, rather than the clear and

convincing evidence, standard applies in this proceeding.

45 . The formula set forth in section 409.910(11)(f),

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

medical expenses paid on a Medicaid recipient’s behalf, and

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

adversarial challenge of that recovery. “[W]hen AHCA has not

participated in or approved a settle ment, the administrative

procedure created by section 409.910(17)(b), serves as a means

for determining whether a lesser portion of the 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).” Eady v. Ag. for Health Care Admin. , 279

So. 3d 1249, 2019 Fla. App. LEXIS 1 3685 at *14 (Fla. 1st DCA Sept. 12, 2019) (quoting Delgado , 2018 Fla. App. LEXIS at *3

(bracketed language omitted)). In order to succe ssfully

challenge the amount payable to AHCA, the Medicaid recipient must

prove, by a preponderance of the evidence, that a lesser portion

of the total recover ed should be allocated as reimbursement for

past medical expenses than the amount AHCA has calcul ated

pursuant to the formula in section 409.910(11)(f). See Gallardo ,

263 F. Supp. at 1260.

46 . Where the Medicaid recipient presents uncontradicted

testimony, there must be a “reasonable basis in the evidence” to

reject it. Giraldo v. Ag. for Health Ca re Admin. , 248 So. 3d 53,

56 (Fla. 2018); Larrigui - Negron v. Ag. for Health Care Admin. ,

2019 Fla. App. LEXIS 15410 (Fla. 1st DCA Oct. 11, 2019); Eady ,

2019 Fla. App. LEXIS at *23 - 24.

4 7 . Here, Petitioner proved, by a preponderance of the

evidence, that $1,000,000 represents 15.7 percent of Petitioner’s

medical malpractice and wrongful death claim valued at

$6,372.654.53. As a result, the uncontroverted evidence

demonstrates that AHCA’s full Medicaid lien should be reduced by

the percentage that Petitio ner’s recovery represents the total

value of Petitioner’s claim. The preponderance of the evidence

further establishes that the total value of Petitioner’s medical

malpractice and wrongful death claim is $6,372,654.53, and that

the $1,000,00 0.0 0 settlemen t resulte d in Petitioner recovering

15.7 percent of Elisha’s past medical expenses. When applying

the percentage allocation of 15.7 percent to the past medical

expenses of $372,654.53, the result is $58,506.76, which

constitutes the share of the settlemen t proceeds fairly and

proportionally attributable to Petitioner’s recovery of past

medical expenses. In addition, the preponderance of the evidence

establishes that $58,506.76 amounts to a fair and reasonable

determination of the past medical expenses act ually recovered by

Petitioners and payable to AHCA.

4 8 . While AHCA offered no evidence to counter Mr. Zauzig’s

and Mr. Barrett’s testimony, it argued in its Proposed Final

Order that their testimony was insufficient to support a finding

of fact as to all ocation of past medical expenses to the

settlement. The undersigned found that Mr. Zauzig’s and

Mr. Barrett’s uncontradicted expert testimony established that

each had considerable expertise in making such determinations,

and that Petitioner presented su fficient and uncontradicted

evidence that established that $58,506.76 as the settlement

portion properly allocated to past medical expenses.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Agency for Health Care Adm inistration is

entitled to $58,506.76 as satisfaction of its Medicaid lien.

DONE AND ORDERED this 1 3 th day of December, 2019 , in

Tallahassee, Leon County, Florida.

ROBERT J. TELFER III

Administra tive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

th is 13 th day of December, 2019 .

ENDNOTE

1/ T he parties , in their Joint Pre - hearing Stipulation, did not

dispute that “burden of proof for a Medicaid recipient to

successfully contest the amount payable to AHCA pursuant to the

formula [set forth in] § 40 9.910(11)(f) is a preponderance of the

evidence.”

COPIES FURNISHED:

Alexander R. Boler, Esquire

2073 Summit Lake Drive , Suite 300

Tallahassee, Florida 32317

(eServed)

Floyd B. Faglie, Esquire

Staunton and Faglie, P.L.

189 East Walnut Street

Monticello , Florida 32344

(eServed)

Kim Annette Kellum, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(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)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3 , Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Adminis tration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

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 pr oceedings 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 o rder 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 p rovided by law.