21-000071MTR Jonathan M. Martel, An Incapacitated Person, By And Through His Guardian Nancy Hudack vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, May 7, 2021.

Summary: Petitioner proved by clear and convincing evidence that $6,663.61 amounted to a fair and reasonable determination of the past medical expenses actually recovered by Petitioner and payable to Medicaid.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ONATHAN M. M ARTEL , A N

I NCAPACITATED P ERSON , B Y A ND

T HROUGH H IS G UARDIAN N ANCY

H UDACK ,

Petitioner ,

Case No. 21 - 0071MTR

vs.

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

F INAL O RDER

Pursuant to notice, a formal administrative hearing was conducted via

Zoom on March 5, 2021, before Administrative Law Judge Garnett W.

Chisenhall of the Division of Administrativ e Hearings (ÑDOAHÒ)

A PPEARANCES

For Petitioner: Floyd B. Faglie, Esquire

Staunton & Faglie, PL

189 East Walnut Street

Monticello, Florida 32344

For Respondent: Alexander R. Boler, Esquire

Suite 300

2073 Summit Lake Drive

Tallahassee, Florida 32317

S TATEMENT O F T HE I SSUE

The issue to be determined is the amount Respondent, Agency for Health

Care Administration (ÑAHCAÒ), is to be reimbursed for medical expenses paid

on behalf of Jonathan M. Martel (ÑPetitionerÒ or ÑMr. MartelÒ) pursuant to

sec tion 409.910, Florida Statutes (2018). 1

P RELIMINARY S TATEMENT

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 f or medical expenses paid on the

Medicaid recipientÔs behalf. This mandate is facilitated by a statutory lien

in AHCAÔs favor on the settlement proceeds, and federal law mandates that

MedicaidÔs lien only applies to past medical expenses that the Medicaid

recipient actually recovered through the settlement . When a Medicaid

recipientÔs settlement proceeds are less than the recipientÔs total

damages (which may consist of multiple components, such as past medical

expenses, economic damages, and noneconomic da mages), 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 fr om 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 calculat ed via section

409.910(11)(f).

On January 7, 2021, Mr. Martel filed a ÑPetition to Determine Amount

Payable to Agency for Health Care Administration in Satisfaction of Medicaid

LienÒ to challenge AHCAÔs imposition of a lien of $261,318.10 on $510,000 .00

1 Unless indicated otherwise, all statutory references will be to the 20 20 version of the

Florida Statutes. While the parties did not indicate when Mr. MartelÔs personal injury claim

was settled, PetitionerÔs Exhibit 2 suggests the claim was settled in 2020 . 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)).

o f settlement proceeds recovered in a personal injury lawsuit. Mr. Martel

valued his total damages as being at least $20,000,000.00. Because the

$510,000 .00 in settlement proceeds equates to 2.55 percent of his total

damages, Mr. Martel argued that AHCA was only entitled to recover 2.55

percent of the medical expenses it paid on his behalf, i.e., $6,663.61.

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

stipulated facts for which no further proof would be necessary. Those

stipu lated facts have been accepted and considered in the preparation of this

Final Order.

The final hearing was held as scheduled on March 5, 2021. Petitioner

presented testimony from Jack Fine, Esquire, and R. Vincent Barret t ,

Esquire. The undersigned accept ed PetitionerÔs Exhibits 1 through 7 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 March 24,

2021.

Respondent filed a timely Prop osed Final Order on April 2, 2021.

Mr. MartelÔs attorney filed a motion on April 5, 2021, requesting that the

deadline for proposed final orders be extended to April 12, 2021. The

undersigned issued an Order on April 5, 2021, granting that motion, and

Pet itioner filed a Proposed Final Order on April 12, 2021. Both proposed final

orders were considered during the preparation of this Final Order.

F INDINGS O F F ACT

The following findings are based on testimony, 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 Litigation and the

Medicaid Lien

1. Mr. Martel was catastrophically and permanently injured on

February 14, 2019, when another vehicle struck his motorcycle. Mr. Martel

was behind a truck on a two - lane road, and the truck swung out wide to make

a right turn. There was a collision as Mr. Martel was trying to pass the truck

on the right. Mr. Martel, who was in his 30Ôs at the time, suffered severe

orthopedic injuries along with catastrophic brain damage leaving him unable

to ambulate or care for himself in any manner. He will need continuous care

for the rest of his life.

2. The Medicaid program, through AHCA, paid $2 61,318.10 to cover the

medical care related to Mr. MartelÔs injuries. Accordingly, $261,318.10

constitutes Mr. MartelÔs entire claim for past medical expenses.

3. Through his guardian, Mr. Martel pursued a personal injury claim

against the parties (Ñthe De fendantsÒ) allegedly liable for his injuries.

4. The Defendants maintained insurance coverage with policy limits of

$510,000 .00 and had no other collectible assets. Mr. Martel settled his

personal injury claim via a series of confidential settlements resul ting in an

unallocated, lump - sum amount of $510,000. 00. In other words, the

settlement did not identify how the lump - sum amount was allocated between

components of damages , such as past medical expenses, economic damages,

and noneconomic damages .

5. Durin g the pendency of Mr. MartelÔs personal injury claim, AHCA

asserted a $261,318.10 Medicaid lien against Mr. MartelÔs cause of action and

any settlement of that action. That amount represents the sum that the

Medicaid program, through AHCA, spent on Mr. Mar telÔs behalf for his past

medical expenses.

6. AHCA did not initiate a civil action to enforce its rights under

section 409.910. Nor did AHCA intervene in or join Mr. MartelÔs claim

against the Defendants.

7. AHCA, via letter, received notice of Mr. Marte lÔs settlement, but AHCA

has not moved to set - aside, void, or otherwise dispute Mr. MartelÔs

settlement.

8. Mr. Martel incurred $124.00 in taxable costs securing the settlement.

9. Applying the formula in section 409.910(11)(f) to Mr. MartelÔs

$510,000 .00 settlement would require a payment of $191,188.00 to AHCA.

10. Mr. Martel deposited $191,188.00 into an interest - bearing account for

AHCAÔs benefit pending an administrative determination of AHCAÔs rights.

Valuation of the Personal Injury Claim

11 . Jack Fine represented Mr. Martel during the personal injury action.

Mr. Fine has practiced law since December of 1976. He is a partner with the

firm of Fine, Farkash, and Parlapiano in Gainesville, Florida, where he

represents plaintiffs with catastrophic inju ries. His primary practice areas

are premises liability and vehicular accidents.

12. Mr. Fine routinely assesses the value of damage claims, and he does so

by examining medical records, meeting with clients, and then comparing the

information he collecte d against what similarly situated plaintiffs have

recovered as damages.

13. Mr. Fine is a member of the American Board of Trial Advocates and

the Florida Justice Association. He uses his membership in the latter

organization to stay current on jury verdi cts.

14. Mr. Fine testified that $20 million would be a conservative valuation

of Mr. MartelÔs injuries:

Q: Did you develop an opinion concerning the full

value of [Mr. MartelÔs] damages?

A: Well, sure. The full value of his damages were

incalculable. I mean, the case is worth tens of

millions of dollars. We have this jury verdict survey

here of cases where the Ï where the verdicts are in

excess of $20 million, and the Ï I do believe that the

case Ï you know, $ 20, $ 30, $40 million is a fair

amount becau se the injuries were so incredibly

substantial and horrible in terms of turning a

person from a functioning human being to someone

who needs to be cared for like a baby, basically.

Q: So a range between $ 20 and $40 million would

be an appropriate valuatio n of Mr. MartelÔs

damages?

A: I think thatÔs reasonable, yes.

15. On cross - examination, Mr. Fine reiterated his earlier testimony

regarding the value of Mr. MartelÔs damages:

Q: You testified regarding the full value of

Mr. MartelÔs damages, a nd I believe you stated that

the full value of his damages are incalculable. Do

you agree with that?

A: Well, itÔs the job of the jury to calculate the

damages. When I said the damages are

Ñincalculable,Ò what I meant to say or what I meant

to imply was t his is like the worst thing that could

happen to a person. So in terms of calculating the

damages, picture the very worst thing that could

happen to an individual. ThatÔs Ï thatÔs sort of

what I meant. Did I mean to say that the damages

canÔt be figured ou t or a jury couldnÔt figure out or a

lawyer canÔt figure out what the approximate value

is? ThatÔs not what I meant.

Q: All right a nd then you talked about a range of

about $ 20 - to $40 million. Do you have a

breakdown for each element of Mr. MartelÔs

dama ges, what they would be worth?

A: No, I donÔt. I think the primary element of

damages that is so incredibly severe is the pain -

and - suffering component, because his life was just

totally destroyed and he Ï you know, he went from

being a dad and a functioni ng individual to

someone who literally canÔt partake in your

everyday human experiences that we all take for

granted. He canÔt get out of bed and make

breakfast. He canÔt Ï he canÔt hug a relative with

any sort of knowledge. He Ï itÔs just a really

horribl e situation. And I think that that component

of the damages would be Ï would be the pain and

suffering.

* * *

We know he needs 24/7 care, and we know that

there were just a great number of orthopedic

injuries as well. You know more than that, I canÔt

re ally give you.

Q: For how long does he need 24/7 care?

A: Based on my experience in dealing with these

cases, the rest of his life. He is just profoundly Ï my

experience with the brain injury Ï let me explain a

little bit more. My experience with the bra in injury

cases is that when an individual awakes from the

coma, very often they gradually improve. I have one

case where a young lady was comatose for a couple

months. They were talking about terminating

care Ï pulling the plug, basically. She woke up from

the coma. Today, although she walks with a limp

and speaks with a slur, she is a proud mother of

two, like an 8 - year - old and a 10 - year - old. She really

pulled it together and did great.

But you see Ï people who are going to get better,

you see them g et better in the six months, eight

months [after the accident]. Afterward they start

progressing. This is not one of those cases. He was

not getting better. I would not expect him to ever

get better because the injury was so profound. Of

course, I am a -- IÔm a lawyer, not a doctor, and I

always tell my clients, ÑDonÔt take your medical

advice from a lawyer; take it from a doctor.Ò But

based on my experience with these cases, as well as

the medical records that IÔve reviewed, itÔs 24/7 for

the rest of his l ife. ItÔs just a horrible, permanent

injury.

16. With Mr. MartelÔs damages being conservatively estimated at $20

million, Mr. Fine testified that Mr. Martel only recovered 2.55 percent of his

damages via the settlement. Accordingly, under what shall here inafter be

referred to as Ñthe pro rata approach,Ò Mr. Martel only recovered 2.55

percent , or $6,663.61 , of his total past medical expenses of $261,000. 00

17. Mr. Fine offered the following testimony regarding the rationale

behind the pro rata approach:

Q: Now, we were using that 2.55 percent ratio, and

weÔre applying that ratio to the claim for past

medical expenses; is that correct?

A: Yes.

Q: And itÔs easy for us to do that math because we

have a firm and hard number stipulated to in this

proceeding as to the value of the claim for past

medical expenses, $261,000. ThatÔs known; is that

correct?

A: Yes.

Q: Now, my understandingÔs that, using that same

ratio theory, the 2.55 percent, could be applied to

the claim for past pain and suffering, the claim for

future medical Ï or future medical expenses, the

claim for future pain and suffering, all of the other

elements that could be on a jury verdict form, but

in this particular case, we donÔt have specific

numbers for each one of them; is that correct?

A : Yes.

Q: All right. Now, IÔm going to give you a

hypothetical to demonstrate this. If this case went

to a jury and a jury awarded $20 million in

damages, and on that jury verdict form they listed

out a value for pain and suffering Ï past and

future Ï a value for future medical expenses, a

value for lost earnings, and then, of course,

$261,000 for past medical expenses, and at the

bottom of that jury verdict form it came out to $20

million, but then they also determined that the

defendant was only 2.55 pe rcent liable, under that

fact pattern, that defendant would only have to pay

2.55 percent of each one of those elements of

damages is that correct?

A: That is correct.

Q: All right. So that 2.55 percent ratio would apply

to each individual element of dam ages; is that

correct?

A: Yes.

18. R. Vincent Barret t has practiced law since 1977 and is currently a

partner with the firm of Barrett, Nonni, and Homola. He handles medical

malpractice, pharmaceutical product liability, and catastrophic injury cases.

19. Like Mr. Fine, Mr. Barrett is a member of the Florida Justice

Association, and he stays current with jury verdicts. As part of his work,

Mr. Barrett routinely assesses the value of damages suffered by injured

parties.

20. Mr. Barrett has been rec ognized as an expert in the valuation of

damages and the allocation of settlements at DOAH over 30 times. With

regard to the severity of Mr. MartelÔs injuries, Mr. Barrett testified that :

he has the worst possible kind of injuries. HeÔs a

brain injury pat ient that canÔt talk, canÔt

understand, can respond sometimes to simple

commands that are repeatedly given. But heÔs Ï

heÔs totally, absolutely, unconditionally just brain

injured and Ï so he requires 24/7 care. Tragic

injury.

21. Mr. Barrett further test ified that $20 million is a conservative

valuation of Mr . MartelÔs damages and that the actual value of his damages

could be as high as $40 million. Accordingly, Mr. Barrett agreed with

Mr. FineÔs assessment that Mr. Martel only recovered 2.55 percent of his full

damages.

22. As for ascertaining what portion of Mr. MartelÔs settlement should be

allocated to past medical expenses, Mr . Barrett also relied on the pro rat a

approach by opining that it would be reasonable to determine that

Mr. Martel recovered 2.55 percent, i.e., $6,663 .61 , of the $261,318.10 of past

medical expenses that Medicaid paid on his behalf:

Q: So using $20 million as the full value of all of the

damages, what percentage of those damages were

recovered in the settlement?

A: I believe it was 2.55 percent.

Q: Now, turning to an allocation of past medical

expenses, applying that same ratio, that 2.55

percent to the $261,000 claim for past medical

expenses, that would result in $6,663 being

allocated to past medical expenses; is that corr ect?

A: Yeah, plus 61 cents.

Q: Now, do you believe it would be reasonable to

allocate $6,663 to past medical expenses?

A: Yes, I do.

Q: All right. Now, do you believe that that

allocation would be conservative because weÔre

basing this calculation on a conservative value of

all damages?

A: Yes, it has to be.

Q: All right. Now, this allocation method that weÔre

using, applying the same ratio of settlement to the

full value of all damages, applying that same ratio

to the claim for past medical expenses, thatÔs

consistent with how you have testified in other

allocation hearings here at [DOAH]?

A: Yes, sir, over 30.

* * *

Q: Now, just to recap, $6,663.61 would be the

amount allocable to past medical expenses, and you

believe that would be a reasonable and fair

allocation?

A: Yes, I do.

Findings Regarding the Testimony Presented at the Final Hearing

23. The undersigned finds that the testimony from Mr. Fine and

Mr. Barrett 2 was compelling and persuasive as to: (a) the total damages

incurred by Mr. Martel; (b) that Mr. Martel only recovered 2.55 percent of his

total damages; and (c) that Mr. Martel only recovered 2.55 percent of his past

medical expenses.

24. The pro rata approach, the ratio resulting from dividing the

settlement amount by total da mages, is a reasonable method to determine

how much of a partyÔs past medical expenses were recovered through a

settlement.

2 Petitioner did not offer Mr. Fine and Mr. Barrett as exp ert witnesses during the final

hearing. However, Petitioner noted in the Joint Pre - hearing S tipulation that Mr. Fine would

be testifying as a fact and expert witness. Petitioner also noted in the Joint Pre - hearing

S tipulation that Mr. Barrett would be test ifying as an expert witness. Moreover, Respondent

did not object when Mr. Fine and Mr. Barrett offered opinion testimon y . As a result, the

undersigned has elected to consider Mr. Fine and Mr. Barrett expert witnesses in the

valuation of personal injury cla ims.

25. AHCA offered no evidence to counter Mr. Fine and Mr. BarrettÔs

opinions regarding Mr. MartelÔs total damages or the past medic al expenses

he recovered.

26. Accordingly, clear and convincing evidence demonstrates that the total

value of Mr. MartelÔs personal injury claim is no less than $20 million and

that the $510,000 .00 settlement resulted in him recovering no more than 2.55

percent of his past medical expenses. In addition, clear and convincing

evidence demonstrates that $6,663 .61 amounts to a fair and reasonable

determination of the past medical expenses actually recovered by Mr. Martel

and payable to AHCA.

C ONCLUSIONS O F L AW

27. DOAH has jurisdiction over the subject matter and the parties in this

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

Statutes.

28. AHCA is the agency authorized to administer FloridaÔs Medicaid

program. § 409.902, Fla. Stat.

29 . The Medicaid program Ñprovide[s] federal financial assistance to

States that choose to reimburse certain costs of medical treatment for needy

persons.Ò Harris v. McRae , 448 U.S. 297, 301 (1980).

30 . ÑThe Medicaid program is a cooperative one. The Fe deral Government

pays between 50 percent and 83 percent of the costs a state incurs for patient

care. In return, the State pays its portion of the costs and complies with

certain statutory requirements for making eligibility determinations,

collecting and maintaining information, and administering the program.Ò

Est ate of Hernandez v. Ag. for Health Care Admin. , 190 So. 3d 139, 141 -

42 (Fla. 3rd DCA 2016)(internal citations omitted).

31 . Though participation is optional, once a State elects to participate in

the Medicaid program, it must comply with federal requirements. Harris , 448

U.S. at 301.

32 . One condition for receipt of federal Medicaid funds requires states to

seek reimbursement for medical expenses incurred on behalf of Medicaid

recipients who lat er recover from legally liable third parties. See Ark. Dep't of

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

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

Ñeach participating state implement a thir d - 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 . Ò).

33 . Consistent with this federal requirement, the Florida Legislature

enacted section 409.910, designated as the ÑMedicaid Third - Party Liability

Act,Ò 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 injur y 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 Ñ[t]o comply with federal directives the Florida legislature enacted

section 409.910, Florida Statutes, which authorizes the State to recover from

a personal injury settlement money that the State paid for the plaintiffÔs

medical care prior to recovery.Ò).

34 . Section 409.910(1) sets forth the Fl orida LegislatureÔs 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 Medicaid

recipients. All other sources of payment for medical

care are primary to medical assistance provided by

Medicaid. If benefits of a liable third party are

discovered or become available after medical

assistance has been provided by Me dicaid, it is the

intent of the Legislature that Medicaid be repaid in

full and prior to any other person, program, or

entity. Medicaid is to be repaid in full from, and to

the extent of, any third - party benefits, regardless of

whether a recipient is made whole or other

creditors paid. Principles of common law and equity

as to assignment, lien, and subrogation are

abrogated to the extent necessary to ensure full

recovery by Medicaid from third - party resources.

It is intended that if the resources of a lia ble third

party become available at any time, the public

treasury should not bear the burden of medical

assistance to the extent of such resources.

35 . In addition, the Florida Legislature has authorized AHCA to recover

the monies paid from any third part y, the recipient, the provider of the

recipientÔs medical services, and any person who received the third - party

benefits. § 409.910(7), Fla. Stat.

36 . AHCAÔs effort 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 sub rogation rights

created hereby shall not be reduced, prorated, or

applied to only a portion of a judgment, award, or

settlement, but is to provide full recovery by the

agency from any and all third - party benefits.

Equities of a recipient, his or her legal

representative, a recipientÔs 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 Ñis a b ona fide

assignee for value in the assigned right, title, or interest, and takes vested

legal and equitable title free and clear of late nt equities in a third person.

Equities of a recipient, the recipientÔs legal representative, his or her

creditors, or h ealth care providers shall not defeat or reduce recovery by the

agency as to the assignment granted under this paragraph . Ò).

37 . AHCAÔs efforts are also facilitated by the fact that AHCA has Ñan

automatic lien for the full amount of medical assistance pr ovided 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

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

38 . The am ount 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).

39. Section 409.910(11)(f) prov ides:

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 which results

in a judgment, award, or settlement from a thir d

party, the amount recovered shall be distributed as

follows:

1. After attorneyÔs 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 agencyÔs recovery

of medical assistance benefits paid, the fee for

services of an attorney retained by the recipie nt or

his or her legal representative shall be calculated

at 25 percent of the judgment, award, or

settlement.

40. Applying the formula in section 409.910(11)(f) to the $510,000 .00

settlement in the instant case results in AHCA being owed $191,188.

41. 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 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).

42. 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 chapter

120 within 21 days a fter 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 payab le 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 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.

43. Therefore, the formula in section 409.910(11)(f), provides an initial

determination of AHCAÔs recovery for medical expenses paid on a Medicaid

recipientÔs behalf, and section 409.910(17)(b) sets forth an administrative

3 See Gallardo by & through Vassallo v. Dudek , 963 F.3d 1167, 1182 ( 11th. Cir. 2020)(finding

no conflict between the clear and convincing evidence standard and federal law).

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

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

expenses . Ò).

44. Through the testimony pr ovided by Mr. Fine and Mr. Barrett,

Mr. Martel proved by clear and convincing evidence that $6,663 .61 amounts

to a fair and reasonable determination of the past medical expenses actually

recovered by Mr. Martel and payable to AHCA.

O RDER

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

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

$6,663 .61 in satisfaction of its Medicaid lien.

D ONE A ND O RDERED this 7 th day of May, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7 th day of Ma y, 2021 .

C OPIES F URNISHED :

Alexander R. Boler, Esquire Shena L. Grantham, Esquire

Suite 300 Agency for Health C are Administration

2073 Summit Lake Drive Building 3, Room 3407B

Tallahassee, Florida 32317 2727 Mahan Drive

Tallahassee, Florida 32308

Floyd B. Faglie, Esquire

Staunton & Faglie, PL Simone Marstiller, Secretary

189 East Walnut Street Agency for Health C are Administration

Monticello, Florida 32344 Mail Stop 1

2727 Mahan Drive

Richard J. Shoop, Agency Clerk Tallahassee, Florida 32308

Agency for Health C are Administration

Mail Stop 3 James D. Varnado, General Counsel

2727 Mahan Drive Agency f or Health C are Administration

Tallahassee, Florida 32308 Mail Stop 3

2727 Mahan Drive

Thomas M. Hoeler, Esquire Tallahassee, Florida 32308

Agency for Health C are Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

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 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

renditio n 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 d istrict c ourt of

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

or where a party resides or as o therwise provided by law.