20-002265MTR Gaellen Fabre, By And Through Marie R. Dore, F/K/A Marie R. Aldajuste, His Legal Guardian vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, July 14, 2020.

Summary: Petitioner proved by a preponderance of the evidence that the Agency for Health Care Administration?s Medicaid lien should be reduced.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

G AELLEN F ABRE , B Y A ND T HROUGH

M ARIE R. D ORE , F / K / A M ARIE R.

A LDAJUSTE , H IS L EGAL G UARDIAN ,

Petitioner , Case No. 20 - 2265MTR

vs.

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

F INAL O RDER

Administrative Law Judge June C. McKinney of the Division of

Administrative Hearings (ÑDOAHÒ) heard this case by video conferencing via

Zoom on June 11, 2020.

A PPEARANCES

For P etitioner: Jason Dean Lazarus, Esquire

Special Needs Law Firm

2420 South Lakemont Avenue, Suite 160

Orlando, Florida 32814

For Respondent: Alexander R. Boler, Esquire

2073 Summit Lake Drive, Suite 300

Tallahassee, Florida 32317

S TATEMENT O F T HE I SSUE

The issue is the amount payable to Respondent, Agency for H ealth Care

Administration (ÑRespondentÒ or Ñ AHCA Ò), in satisfaction of RespondentÔs

Medicaid lien from a settlement received by Petitioner (ÑPetitionerÒ or

ÑFabreÒ) from a third party, pursuant to section 409.910, Florida Statutes

(2019).

P RELIMINARY S TATEMENT

On or about May 13, 2020, Petitioner , Marie R. Dore, legal guardian of

Fabre, filed a Petition to Determine MedicaidÔs Lien Amount to Satisfy

Claim Against Personal Injury Recovery by the Age ncy for Health Care

Administration (ÑPetitionÒ) pursuant to section 409.910(17)(b), disputing the

amount of the lien and requesting a hearing.

The Petition was filed at DOAH on May 13, 2020, and assigned to the

undersigned administrative law judge . The ca se proceeded as scheduled on

June 11, 2020 .

The parties filed a Joint Pre - hearing Stipulation in which they identified

stipulated facts for which no further proof would be necessary , and the

relevant facts stipulated therein are accepted and made part of the Findings

of Fact below.

At hearing, Petitioner presented the testimony of three witnesses:

Maria R. Dore, FabreÔs mother ; Jay Wasserman, Esquire; and Mark

Matovina, Esquire. PetitionersÔ Exhibits 1 through 5 were received into

evidence without object ion. Respondent did not present any witnesses or

proffer any exhibits for admission into evidence.

The proceedings of the hearing were recorded but not transcri bed. Both

parties filed timely p roposed f inal o rders that the undersigned has considered

in the preparation of this Final Order.

Unless otherwise noted, all statutory references are to the Florida

Statutes (2019).

F INDINGS O F F ACT

1. On March 13, 2017, Fabre, who was then 23 years old, was involved in

a car accident. FabreÔs accident occurred at a pproximately midnight when he

was traveling northbound in the left - hand inside lane of Interstate 95 in Fort

Lauderdale, Florida , at or near Broward Boulevard . The collision occurred

when the vehicle Fabre was operating rear - ended a Mack truck (ÑtruckÒ) th at

was improperly illuminated and traveling approximately 25 miles per hour in

a 65 - mile per hour speed limit zone in FabreÔs lane of travel.

2. After the accident, Fabre was treated at Broward General Medical

Center and remained hospitalized for several m onths .

3. FabreÔs automobile accident caused catastrophic , significant , and

debilitating injuries including : a traumatic brain injury; open knee fracture;

left humerus fracture; comminuted distal femur fracture; right distal radius

fracture; right frontal lobe encephalomalacia; required feeding tube; deep

venous thrombosis; C7 transverse process fracture; grade three liver

laceration; left olecranon fracture; T7 transverse process fracture; left one

through three rib fractures; external fixator of the left open femur fracture;

open reduction, internal fixation of left f emur; significant skin grafting; and

an open head injury.

4. Since the accident and the resulting severe brain injury, Fabre has been

in a permanently disabled state requiring 24 - hour a day , seven days a week

care. Fabre will never fully recover from his injuries and will require

assistance with his activities of daily living for the rest of his life.

5. Fabre brought a personal injury lawsuit against the various defendants

from the collision , alleging dangerous obstruction since the truck was poorly

illuminated and traveling at an unsafe speed.

6. Jay Wasserman (ÑWassermanÒ), a civil trial attorney with the law firm

of Katman, Wasserman, Bennardina & Rubinstein in Boca Raton, Florida,

represe nted Fabre in his personal injury action.

7. Wasserman handled FabreÔs personal injury case through settlement.

The personal injury lawsuit was ultimately settled for the available

insurance policy limits in the amount of $1,030,000.

8. AHCA was properly n otified of FabreÔs lawsuit against the defendants.

AHCA paid $150,645.40 in benefits associated with FabreÔs medical care

related injuries and asserted a lien for the same amount against FabreÔs

settlement proceeds.

9. Sections 409.910(11)(f) and 409.910( 17)(b), as amended, provide for

recovery by Medicaid for both past and future medical expenses. Section

409.910(17)(b) also imposes a clear and convincing burden of proof on the

Medicaid recipient challenging the amount of the lien calculated by AHCA .

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

the court held that the provisions allowing Medicaid to recover future medical

expenses and imposing a clear and convincing standard on recipients

contesting AHCAÔs calculations violate and are preempted by federal law.

11. In this matter, the parties have stipulated that Gallardo limits AHCA

in the section 409.910(17)(b) procedure to the past medical expense portion of

the recovery and that PetitionerÔs burden of proof is a preponderan ce of the

evidence. See also Giraldo v. Ag. for Health Care Admin. , 248 So. 3d 53

(Fla. 2018)(under federal law AHCA may only reach the past medical

expenses portion of a Medicaid recipient's tort recovery to satisfy its Medicaid

lien).

H EARING

12. At hea ring, FabreÔs mother, Maria R. Dore, testified about FabreÔs

catastrophic injuries, hospital stay, and the extensive care Fabre requires on

a daily basis . She explained that he has a short memory span, repeats

himself, cannot be left alone, and attends occ upational and physical therapy

three times a week.

13. Petitioner presented expert testimony from Wasserman, Fabre's

Florida trial attorney . Wasserman is a 33 - year Florida bar member who

practices personal injury law and malpractice law and has handled nu merous

catastrophic personal injury plaintiff cases including cases similar to FabreÔs

case. His cases have ranged in damage amounts up to eight figures.

Wasserman is also a member of the Academy of Trial Lawyers and Florida

Justice Association and admitte d to practice before all Florida courts

including the Southern and Middle Districts of Florida .

14. Wasserman testified that when he was first contacted about FabreÔs

case, Fabre was in the hospital in a vegetative state , and Wasserman hired

experts to de termine how the accident occurred. Wasserman explained

ordinary fault would have been placed on Fabre for running into the back of a

truck , but the experts were able to determine the truck may have been

traveling below the speed limit, and may have been im properly lit, opening

up liability on the defendants.

15. WassermanÔs expertise also encompasses the regular valuation of

damages for injured parties. He reviews clientsÔ cases daily to determine their

value by accessing the economic and non - economic dama ges. Wasserman

explained that as a routine part of his practice, he makes assessments

concerning the value of damages suffered. He detailed his process for making

those assessments.

16. Wasserman credibly made clear the process he took to develop an

opini on concerning the value for the damages suffered in FabreÔs case.

Wasserman testified that he reviewed FabreÔs condition , including FabreÔs

catastrophic brain injury ; inability to walk, stand, and push a wheelchair ;

and memory problems where he can not reme mber things two minutes later.

Although Wasserman did not retain anyone to complete a life care plan, he

consulted with a life care planner regarding FabreÔs care needs. Wasserman

testified that FabreÔs need for attendant care for the rest of his life 24 h ours a

day would exceed $15 million in damages.

17. Wasserman testified that he calculated the economic value by

reducing the 24 - hour attendant care rate of $30 an hour to the present value

of $23 an hour, which added up to about $200,000 annually. Next,

Wasserman explained that he multiplied the annual amount of $200,000 by

FabreÔs life expectancy of 50 years, which totaled $10 million in only

economic damages conservatively.

18. Wasserman further explained that he evaluated FabreÔs non - economic

damages based on his loss of enjoyment of life and pain and suffering. He

testified that the non - economic damages would have been significant because

of FabreÔs personal loss. He evaluated how Fabre would never shower

independently, get married, or walk. Wasserman determined that a

$5 million value for non - economic damages was based on his experience and

research after looking at the results of similar brain injury cases.

19. Wasserman concluded that to determine the total value of FabreÔs

damages , he added the $1 0 million of economic damages and the $5 million of

non - economic together for a total conservative value of $15 million in

damages for Fabre.

20. Wasserman also testified to a pro rata approach for resolving FabreÔs

Medicaid lien. He explained that he was not advocating one way or the other

way regarding the use of the pro rata formula but if the conservative

valuation of $15 million is accepted, then the $1,030,000 net recovery amount

is only 6.87 percent of the full measure of FabreÔs damages. Wasserman

further explained reasonably and persuasively that the next step in the pro

rata method to reduce the Medicaid lien is to take the lien amount,

$150,645.40 , and multiply it by 6.87 percent, which he testified he could n o t

do in his head but knew it came to an amount in the $10,000s, which would

be the balance owed to AHCA.

21. At hearing, Mark Matovina (ÑMatovinaÒ) also provided an expert

opinion without objection regarding the value of FabreÔs case. Matovina is an

18 - year personal injury , Martindale Hubbe ll AV rated , attorney. He is a

partner at Politas and Matovina in Port Orange, Florida , who solely practices

personal injury cases and routinely handles valuation of damages for

traumatic brain injury cases.

22. Matovina , as part of his law practice , makes daily assessments

concerning the value of damages suffered by traumatic brain injury parties

and evaluates damages of those catastrophically injured. His process for

determining the value of cases is to look at the past and future medical

expenses, wages, and pain and suffering based on a life table.

23. During the hearing, Matovina detailed how he determined the value of

FabreÔs case. He reviewed the exhibits in this case, talked to the mother

about FabreÔs 24 - hour day to day care needs, wages, reviewed past medical

bills, doctorÔs notes, some medical documents, and a simple life care plan. 1 He

computed FabreÔs life expectancy at 50 years and testified that 24 - hour care

for 50 years is $10 million in just medical assistance. Matovina further

opined that t he total damages would be $15 to $20 million since the 24 - hour a

day medical assistance would be $10 million. Matovina testified that he did

not disagree with the conservative $15 million valuation that Wasserman

opined was the damages amount.

24. At hear ing, Matovina acknowledged the lien reduction process and

testified that the pro rata formula should be used to allocate the value of the

damages to the amount actually recovered. During his testimony, Matovina

also admitted he put his opinion in his affid avit, PetitionerÔs Exhibit 2, which

further explains pro rata as a Ñformula with a ratio to be used to value the

1 The undersigned fi nds PetitionerÔs experts to be credible. Wasserman testified he consulted

a life care planner but did not pay for a life care planner because of the policy limits for

recovery and his attempt to save money for his client. Matovina referred to a simple life care

plan on direct examination and clarified on redirect examination that what he reviewed was

not a formal life care plan. MatovinaÔs testimony does not contradict WassermanÔs testimony

regarding a life care plan.

entire value of the case and reduce medical liens in relation to the ratio of the

actual damages incurred versus the actual damages recovered.Ò Additionally,

he opined in his affidavit:

In my opinion, based upon past experiences over

the last eighteen (18) years, the Ahlborn formula is

the only fair and reasonable method to determine

past medical expenses as it relates to MedicaidÔs

lien. I have reviewed numerous orders applying

that type of formula and I am not aware of any

other formula or way to resolve a Medicaid lien

without violating the United States Supreme Court

decision in Ahlborn.

F INDINGS R EGARDING T HE T ESTIMONY P RESENTED A T T HE F INAL H EARING

25. The testimony of Petitioner's two experts regarding the total value of

damages was credible, unimpeached, and unrebutted. Petitioner

demonstrated that the settlement of $1,030,000 does not begin to fully

compensate Fabre for the full value of his damages.

2 6 . The undersigned finds that Petitioner has established by uncontested

evidence that the $1,030,000 settlement amount is 6.87 percent of the total

value ($15 million) of PetitionerÔs damages. Petitioner asserts that the same

calculation, 6.8 7 percent of the settlement proceeds should be the portion of

the Medi c aid lien paid to AHCA for the past medical expenses.

2 7 . AHCA offered no evidence to counter either Wasserman or MatovinaÔs

testimony or PetitionerÔs Exhibit 2 as to valuation or the p ro rata formula

reduction ratio. Also, AHCA failed to offer any alternative opinions on the

damage valuation method suggested by Wasserman or Matovina, both of

whom testified knowledgeably and credibly as experienced practitioners.

28. Petitioner proved by a preponderance of the evidence that Respondent

should be reimbursed for its Medicaid lien in a lesser amount than the

amount calculated by Respondent pursuant to the formula set forth in section

409.910(11)(f). AHCA Ôs lien for past medical expenses is $1 50,645.40.

Applying the 6.87 percent pro rata ratio to the Medicaid lien total yields

$10,349.33, the portion of the settlement representing reimbursement for

past medical expenses and the amount recoverable by AHCA for its lien.

C ONCLUSIONS O F L AW

29. DO AH has jurisdiction over the subject matter and the parties in this

case, and final order authority pursuant to sections 120.569, 120.57(1), and

409.910(17), Florida Statutes.

30. AHCA is the agency authorized to administer Florida's Medicaid

program. See § 409.902, Fla. Stat.

31. As a condition for receipt of federal Medicaid funds, states are

required to seek reimbursement for medical expenses incurred on behalf of

beneficiaries who later recover from a third party. See Ark. Dep't of Health &

Human Serv s. v. Ahlborn , 547 U.S. 268, 276 (2006). To secure reimbursement

from liable third parties, the state must require the Medicaid recipient assign

to the state his right to recover medical expenses from those third parties. In

relevant part, 42 U.S.C. § 1396 a(a)(25) requires:

(H) that to the extent that payment has been made

under the State Plan for medical assistance in any

case where a third party has a legal liability to

make payment for such assistance, the State has in

effect laws under which, to the ex tent that payment

has been made under the State Plan for medical

assistance for health care items or services

furnished to an individual, the State is considered

to have acquired the rights of such individual to

payment by any other party for such health c are

items or services.

32. To comply with this federal mandate, the Florida Legislature enacted

section 409.910, Florida's Medicaid Third - Party Liability Act. Section

409.910(6)(c) establishes an automatic lien on any judgment or settlement

with a third p arty for the full amount of medical expenses paid to the

Medicaid recipient. Even so, AHCAÔs recovery is limited to those proceeds

allocable to past medical expenses.

33. The amount to be recovered for Medicaid medical expenses from a

judgment, award, or s ettlement 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, n.3 (Fla. 2d DCA 2013) .

34. In this matter, the parties stipulated that the amount due to AHCA in

satisfaction of its lien, pursuant to the formula set forth in section

409.910(11)(f), is $150,645.40. Petitioner, however, asserts that a lesser

amount is owed to Respondent because Petitioner did not recover the full

value of his damages.

35. It is undisputed that Medicaid provided $150,645.40 in medical

expenses for Fabre and that AHCA asserted a Medicaid lien against

Petitioner's $1,030,000 settlement and the right to seek reimbursement for

its expenses. AHCA is utilizing the mechanism set forth in section

409.910(11)(f) to enforce its right.

36. Section 409.910(13) provides that AHCA is not automatically bound by

the allocation of damages set forth in Petitioner's settlement agreement.

Section 409.910(13) provides, in pertinent part, that:

(13) No action of the recipien t shall prejudice the

rights of the agency under this section. No

settlement, agreement, consent decree, trust

agreement, annuity contract, pledge, security

arrangement, or any other device, hereafter

collectively referred to in this subsection as a

"settl ement agreement," entered into or consented

to by the recipient or his or her legal representative

shall impair the agency's rights. However, in a

structured settlement, no settlement agreement by

the parties shall be effective or binding against the

agenc y for benefits accrued without the express

written consent of the agency or an appropriate

order of a court having personal jurisdiction over

the agency.

37. Section 409.910(17)(b) provides a method whereby a recipient may

challenge AHCA's presumptively c orrect calculation of medical expenses

payable to the agency. The mechanism is a means for determining whether a

lesser portion of total recovery should be allocated as reimbursement for

medical expenses in lieu of the amount calculated by application of t he

formula in section 409.910(11)(f).

38. As the party contesting the amount of the settlement that should be

payable to AHCA for past medical expenses, Petitioner must prove by the

preponderance of evidence that a lesser portion of the total recovery sho uld

be allocated as reimbursement for past medical expenses than the amount

calculated by AHCA pursuant to the formula. Gallardo , 263 F. Supp. 3d

1247.

39. The Florida Supreme Court defines "preponderance of the evidence" as

follows:

The greater weight of the evidence, not necessarily

established by the greater number of witnesses

testifying to a fact but by evidence that has the

most convincing force; superior evidentiary weight

that, though not sufficient to free the mind wholly

from all reasonable doubt , is still sufficient to

incline a fair and impartial mind to one side of the

issue rather than the other.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 n.1

(Fla. 2014) .

40. It has been determined that the fair allocation of the amount of the

settlement that is attributable to medical costs includes considering the

evidence used to rebut the section 409.910(11)(f) formula when determining

whether AHCA's lien amount should be adjusted. See Harrell v. State ,

143 So. 3d 478, 480 (Fla. 1st DCA 2014)(holding that petitioner " must be

given the opportunity to seek the reduction of the amount of a Medicaid lien

established by the statutory formula outlined in section 409.910(11)(f) , by

demonstrating, with evidence, that the lien amount exceeds the amount

recovered for medical expenses").

41. While AHCA offered no evidence to counter Wasserman and

Matovin a Ôs testimony or PetitionerÔs exhibits, AHCA contends in its Proposed

Final Order that Petitioner argued a conclusory manner for the pro rata

formu la and did not present evidence to provide a method for the allocation of

the $1,030,000 settlement. However, the undersigned is not persuaded by

AHCAÔs position without AHCA presenting any evidence to rebut PetitionerÔs

evidence.

42. In Agency for Health Care Administration v . Rodriguez , 294 So. 3d 441

(Fla. 1 st DCA 2020), the court accepted the use of the pro rata formula as a

proportional reduction if the Medicaid recipient presents unrefuted evidence

of past medical expenses of a lesser amount than that calculated by AHCA

under section 409.910(11)(f).

43. In Giraldo , the court also held that where uncontradicted testimony is

presented by the recipient, the factfinder must have a "reasonable basis in

the record" to reject it. Giraldo , 248 So. 3d at 56. In this matter, Wasserman

and Matovin a Ôs uncontradicted testimony and PetitionerÔs exhibits were

sufficient to convince the undersigned of PetitionerÔs side of the issue since

AHCA provided no evidence or testimony to the contrary .

44. Petitioners proved by a preponderance of the evidence that the

settlement proceeds of $1,030,000 represent only 6.87 percent of PetitionerÔs

claim valued at $15 million, which both Wasserman and Matovin a both

believed was a very conservative valuation. Therefore, PetitionerÔs

uncontroverted , unrebutted evidence demonstrates that AHCAÔs full

Medicaid lien amount exceeds the amount recovered for past medical cost and

should be reduced to the ratio of PetitionerÔs actual recovery to the total value

of PetitionerÔs claim.

45. Acco rdingly, the application of the percentage allocation of

6.87 percent to the lien amount of $150,645.40 results in the amount of

$10,349.33, which constitutes the share of the settlement proceeds fairly and

proportionally attributable to FabreÔs recovery o f past medical expenses.

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

hereby O RDERED that the Agency for Health Care Administration is entitled

to $10,349.33 2 in satisfaction of its Medicaid lien.

D ONE A ND O RDERED this 14th day of July , 2020 , in Tallahassee, Leon

County, Florida.

S

J UNE C. M CKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July , 2020 .

C OPIES F URNISHED :

Jason Dean Lazarus, Esquire

Special Needs Law Firm

2420 South Lakemont Avenue , Suite 160

Orlando, Florida 32814

(eServed)

Alexander R. Boler, Esquire

2073 Summit Lake Drive , Suite 300

Tallahassee, Florida 32317

(eServed)

2 Less $2 , 706.14 already received by AH CA.

Shena Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 3 2308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahasse e, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail St op 3

Tallahassee, Florida 32308

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florid a 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 th e notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law .