21-001115MTR Weslen Bastien As Mother And Natural Guardian Of T.S.J., A Minor vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Wednesday, July 7, 2021.

Summary: Based on the uncontradicted evidence presented and the pro-rata methodology of proof submitted by Petitioner's experts, ACHA's lien should be reduced to 20% of $376,327.20, or $75,265.44.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

W ESLEN B ASTIEN A S M OTHER A ND

N ATURAL G UARDIAN OF T.S.J., A M INOR ,

Petitioner , Case No. 21 - 1115MTR

vs.

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

F INAL O RDER

A final hearing was conducted before Robert L. Kilbride, an

Administrative Law Judge ( Ñ ALJ Ò ) of the Division of Administrative Hearings

( Ñ DOAH Ò ), on May 27, 2021, by video teleconference using Zoom techn ology.

A PPEARANCES

For Petitioner: Robert T. Bergin, Jr., Esquire

Robert T. Bergin, Jr., P.A.

506 Datura Street, Suite B

West Palm Beach, Florida 33401

Christopher John Rush, Esquire

Christopher J. Rush & Associates, P.A.

Compson Financial Center, Suite 205

1880 North Congress Avenue

Boynton Beach, Florida 33426

For Respondent: Alexander R. Boler, Esquire

2073 Summit Lake Drive, Suite 300

Tallahassee, Florida 32317

S TATEMENT O F T HE I SS UE

What amount of the personal injury settlement recovered by Petitioner,

Weslen Bastien as m other and n atural g uardian of T.S.J., a minor ( Ñ T.S.J. Ò or

ÑPetitionerÒ ), must be paid to Respondent, Agency for Health Care

Administration ( Ñ AHCA Ò or Ñ Agency Ò ), p ursuant to section 409.910, Florida

Statutes (2019), to fully satisfy the Agency's Medicaid l ien totaling

$279,299.76 .

P RELIMINARY S TATEMENT

On March 23, 2021, T.S.J. filed a Petition to Determine Amount Payable

to Satisfy Medicaid Lien, under the provisi ons of section 409.910(17)(b). The

petition disputed the amount of the lien claimed by AHCA and requested a

hearing.

The matter was assigned to the undersigned to conduct a formal

administrative hearing and render a final order establishing AHCA's lien

re covery amount. The matter proceeded to a hearing on May 27, 2021 .

Prior to the hearing, the parties filed a Joint Pre - h earing Stipulation that

included numerous undisputed facts. At the final hearing, T.S.J.Ôs Exhibits 1

through 1 7 were admitted into evid ence without objection. T.S.J. presented

the testimony of her personal injury lawyer, Robert T. Bergin, Jr. , and

additional testimony from R. Vinson Barrett, Esquire. The Agency noticed

one exhibit, but did not submit it, nor did it call any witnesses.

Th e Transcript of the final hearing was filed with DOAH on June 18,

2021. Both parties timely submitted proposed final orders. They were

carefully reviewed and considered by the undersigned in the preparation of

this Final Order.

All references to the Florid a Statutes are to the version in effect on the

date of the action or conduct involved. Additionally, the parties agree that

the 2020 version of the Florida Statutes applies to the operative statute,

section 409.910.

F INDINGS O F F ACT

The undersigned makes the following findings of fact based on the

stipulations of the parties and other evidence presented at the hearing.

P ARTIES Ô S TIPULATED F ACTS A ND L AW

1. Weslen Bastien (ÑMs. BastienÒ) is the m other and n atural g uardian of

T.S.J . , a minor.

2. On July 4, 20 15, T.S.J. suffered permanent and catastrophic brain

damage during her birth. She has been diagnosed with hypoxic - ischemic

encephalopathy and resulting cerebral palsy.

3. She cannot ambulate, roll - over, speak more than a few simple words, or

perform any of the activities of daily living. She will always be totally

dependent on others.

4. In November 2016, Ms. Bastien served the required Notices of Intent to

Initiate Medical Malpractice Litigation on the h ospital and the delivering

obstetrician. That initiat ed the statutorily mandated 90 - day presuit

screening period, which concluded in February 2017.

5. At the conclusion of the presuit screening period, the hospital and the

obstetrician denied the claim. In addition to denying negligence and

causation, they a sserted that the Florida Birth - Related Neurological Injury

Compensation Plan ( Ñ NICA Ò ) remedy was exclusive and barred a civil action

for T.S.J.Ôs neurological injuries.

6. On March 8, 2017, Ms. Bastien filed a p etition pursuant to

section 766.301, Florida Statute s, et seq., with DOAH seeking a

determination that the notice requirements of section 766.316 were not met

and that the NICA remedy was not exclusive and did not bar a civil action.

7. The f inal h earing was held before the ALJ on December 19, 2017. The

Final Order on Notice was entered on February 16, 2018. The Final Order on

Notice acknowledged that the obstetrician did not provide NICA notice to

Ms. Bastien on July 4, 2015. However, the parties stipulated, and the ALJ

found, that he was excused fr om providing NICA notice on July 4, 2015, as

Ms. Bastien presented in an emergency medical condition due to the onset

and persistence of uterine contractions. Therefore, the obstetrician did not

waive NICA exclusivity , and a civil action against him is bar red.

8. The ALJ found that the hospital did not provide NICA notice to

Ms. Bastien in accordance with section 766.316. Therefore, NICA exclusivity

does not apply to the hospital , and a civil action against the hospital is not

barred.

9. Ms. Bastien brought a medical malpractice lawsuit against the hospital

to recover all of T.S.J.Ôs damages, as well as her individual damages

associated with her daughterÔs injuries.

10. During the pendency of T.S.J.'s medical malpractice action, AHCA was

notified of the acti on , and AHCA, though its authorized agent, Conduent

Payment Integrity Solutions, asserted a $279,299.76 Medicaid lien against

T.S.J.'s cause of action and settlement of that action. The Medicaid program ,

through AHCA, spent $279,299.76 on behalf of T.S.J., all of which represents

expenditures paid for T.S.J.'s past medical expenses.

11. A non - AHCA Medicaid provider, Prestige Health Choice, provided

$30,430.54 in past medical expenses on behalf of T.S.J.

12. Another non - AHCA Medicaid provider, Well C are, prov ided $58,034.25

in past medical expenses on behalf of T.S.J.

13. Finally, one other non - AHCA provider, Miami ChildrenÔs Health Plan,

provided $8,562.65 in past medical expenses on behalf of T.S.J.

14. Accordingly, a total of $376,327.20 was paid for T.S.J. 's past medical

expenses.

15. The medical malpractice case was resolved by way of a confidential

settlement.

16. As a condition of T.S.J.Ôs eligibility for Medicaid, T.S.J. assigned to

AHCA her right to recover from liable third - parties medical expenses pa id by

Medicaid. See 42 U.S.C. § 1396a(a)(25)(H) and § 409.910(6)(b), Fla. Stat.

17. Petitioner has agreed to hold the Medicaid lien amount in trust

pending an administrative determination of AHCAÔs rights, and this

constitutes Ñ final agency action Ò for pur poses of c hapter 120, Florida

Statutes, pursuant to s ection 409.910(17).

18. Petitioner and AHCA agree that application of the formula in

section 409.910(11)(f) to the $8 million - dollar settlement recovery requires

payment to AHCA in the full $279,299.76 a mount of the Medicaid lien.

19. Petitioner and AHCA agreed that the 2020 version of section 409.910

controls jurisdiction of DOAH in this case.

20. Petitioner and AHCA agreed that the burden of proof at the hearing

for Petitioner in contesting the amount p ayable to AHCA is clear and

convincing evidence. § 409.9 1 0(17)(b), Fla. Stat.

21. Petitioner and AHCA agreed that DOAH has jurisdiction under

section 409.910(17)(b) to determine the portion of a total recovery which

should be allocated as past medical expe nses. The parties stipulate d that

AHCA is limited in the section 409.910(17)(b) procedure to the past medical

expense portion of the recovery. See Giraldo v. Ag . for Health Care Admin. ,

248 So. 3d 53, 56 (Fla. 2018).

E VIDENCE A T H EARING

22. At the final he aring, Petitioner presented the testimony of two

witnesses: Robert T. Bergin, Jr., Esquire ( Ñ Bergin Ò ), PetitionerÔs personal

injury attorney, and R. Vinson Barrett, Esquire ( Ñ Barrett Ò ), an experienced

trial lawyer who handles catastrophic personal injury c ases.

23. Over AHCA Ôs objections, both Bergin and Barrett were accepted as

experts on the valuation of personal injury damages for an individual.

2 4 . Barrett has practiced law since 1977 and is currently a partner with

the firm of Barrett , Nonni and Homol a. He handles medical malpractice and

catastrophic personal injury cases.

2 5 . Barrett stays current with jury verdicts. As part of his work, Barrett

routinely assesses the value of damages suffered by injured parties. The

valuation of personal injury cases has been a necessary and ongoing part of

his practice since 1978.

2 6 . Barrett testified that he has been recognized as an expert in the

valuation of catastrophic personal injury cases at DOAH over 30 times.

2 7 . Barrett reviewed all the exhibits in this ca se. To come to a valuation

determination in any given case, he related that he looks at medical records

and reports of other experts who have given impairment ratings and other

assessment reports. In this case, he reviewed a habitation assessment

prelimina ry report prepared by Susan K. McKenzie, MS.

28. Barrett also reviews life care and continuation of care reports for

future medical needs. In this case , he reviewed a report prepared by

Dr. Craig H. Lichtblau, and an economistÔs report regarding the presen t

value of economic damages prepared by Bernard F. Pettingill, Jr. , Ph.D.

2 9 . Barrett was tendered as an expert regarding valuation of personal

injury damages and resolution of liens in personal injury cases. The Agency

objected for lack of foundation. The undersigned found that Petitioner had set

fo r th an adequate basis and predicate, and permitted Barrett to give his

opinion as to the valuation of the underlying personal injury claim by

Petitioner.

30 . Barrett testified that, in his opinion, the total dam ages suffered by

T.S.J. were valued at $40 million. This was based on the fact that T.S.J.Ôs

economic damages were over $27 million. Added to this were her non -

economic damages for such things as loss of enjoyment of life and pain and

suffering , which he v alued at another $25 million.

31 . Barrett based his opinion, in part, on several other comparable

personal injury cases he studied resulting in damages in the range of

$40 million.

3 2 . In comparing the $40 million to the settlement proceeds of $8 million,

Barrett concluded that T.S.J. recovered only 20 percent of her total damages.

The 20 percent would apply to each element of damages, including past

medical expenses.

33. Barrett concluded that if she only recovered 20 percent of her total

damages, then li kewise only 20 percent of her past medical expenses were

recovered in the confidential settlement. As a result, he concluded that

AHCA Ôs Medicaid lien should be reduced proportionately to 20 percent of

$376,327.20, or $75,265.44.

3 4 . On cross - examination, however, Barrett was unable to clearly or

convincingly break down or list out with any specificity the amounts he felt

would have been contained in the confidential settlement of $8 million for

each type of damage. This included what the damages would have been for

economic, non - economic or the past medical expense portions of the

confidential settlement. 1

3 5 . Nonetheless, BarrettÔs testimony concerning (1) the value of the case

and (2) the use of the pro rata or proportionality meth o dol o gy was not

persuasi vely rebutted or contradicted by AHCA's counsel on cross -

examination, or by any other evidence.

3 6 . Bergin is a 44 - year practicing attorney , who is a sole practitioner in

West Palm Beach, Florida. He testified regarding his representation of T.S.J .

and her family.

1 Regardless, as will be noted herein, this evidence was not essential to the viability or use

of the proportionality formula approved in Eady v. Agency for Health Care Administration ,

279 So. 3d 1249 (Fla. 1st DCA 2019), and subsequent cases.

37. Bergin handles serious/catastrophic medical malpractice injury cases,

exclusively for plaintiffs. He specializes in handling complex medical

malpractice claims.

3 8 . Bergin was admitted to the Florida Bar in 1977 and began an active

trial pra ctice with an insurance defense firm.

39. He maintained a very active medical malpractice defense practice

until the mid - 1980s. He tried cases involving catastrophic brain injuries to

infants and quadriplegics. As defense counsel, he was required to evalu ate

cases and provide his valuation to the insurance companies so they could set

their accounting reserves.

4 0 . Since the mid - 1980s, Bergin has exclusively represented p laintiffs in

personal injury cases. He primarily handles complex medical malpractice

ca ses. He has been board certified in c ivil t rial l aw since 1983.

41 . In his practice , he has handled cases with personal injuries similar to

those suffered by T.S.J.

42 . Bergin regularly evaluates the damages suffered by injured people

such as T.S.J. He was familiar with T.S.J.Ôs damages from his representation

of T.S.J. in the personal injury lawsuit.

4 3. Bergin was tendered as an expert regarding the valuation of personal

injury damages. The Agency objected on the grounds that there was an

insufficient bas is to find that Bergin has experience with valuation of

damages.

44. Bergin went on to testify , in part, that the valuation of damages was

necessary to properly represent a personal injury plaintiff and that he has

been evaluating damages on personal inju ry cases since 1977.

45. After counsel elicited further evidence concerning Berg in Ôs background

and experience, AHCA had no further objection to BerginÔs additional

qualifications. The undersigned allowed Bergin to provide his expert opinion

on the valuati on of catastrophic personal injury cases, including T.S.J.Ôs.

46 . Bergin testified as to the nature of the litigation on behalf of T.S.J.

and the difficult liability issues related to T.S.J. and her injuries.

47 . As part of his work - up of this case, he con cluded that the full value of

the case was $40 million and made an initial demand for that amount . After

litigating the case for several years, Bergin negotiated a confidential

settlement of $8 million. 2

4 8 . He testified that at the outset he did a thoroug h evaluation of the case.

He was familiar with the issues, having handled similar cases. The

neuroradiology report identified an injury to T . S . J . Ôs thalamus, which is

indicative of an acute near total asphyxia. This was consistent with the

difficulties exp erienced during T.S.J.Ôs birth.

4 9 . Bergin testified that he also retained damage experts to assist him in

determining T . S . J . Ôs economic losses, reduced to present money value. The

economic losses were calculated by his experts to be in excess of $27 milli on.

50 . Bergin testified, without objection, that if the default formula in

section 409.910 was used, it would run afoul of the Federal anti - lien law. He

also testified that the pro rata (proportionality) methodology was an

approved and appropriate method to determine the amount of damages fairly

allocable to past medical expenses in an undifferentiated settlement

agreement.

51. Applying the proportionality ratio and methodology, Bergin opinied

that T.S.J. recovered 20 percent of her past medical expenses in the

confidential settlement and that AHCA Ôs recoverable Medicaid lien should be

limited by that percentage as well.

52. On cross - examination by AHCA Ôs counsel, however, Bergin, like

Barrett, was unable to clearly or convincingly break down or list out t he

2 It is worth noting that Bergin did not directly opine at hearing th at the total value of the

case was $40 million. Rather, he relied upon his initial demand as evidence concerning his

opinion of the value.

specific amounts he felt would have been contained in the final settlement of

$8 million for each type of damage. This included what the breakdown of

damages would have been for economic, non - economic , or the past medical

expense portion of the confide ntial settlement.

5 3. Nonetheless, BerginÔs testimony concerning the value of the case and

the use of the proportionality methodology and resulting allocation was not

persuasively rebutted or contradicted by AHCA's counsel on cross -

examination or by any ot her evidence offered by AHCA .

54. Both witnesses reviewed adequate portions of T.S.J.Ôs medical

information and other information before offering their opinion s regarding

the amount fairly allocable to past medical expenses in the settlement .

5 5. AHCA did not offer any evidence to rebut the credentials or testimony

of Bergin or Barrett regarding the total value of T.S.J.Ôs claim, or the

proportionality methodol o gy they proposed to reduce AHCA Ôs lien.

5 6. Likewise, AHCA did not offer any alternative expert o pinions on the

damage valuation or allocation method proposed by Bergin or Barrett.

5 7. The undersigned finds that Petitioner has established by clear and

convincing evidence that the $8 million - dollar recovery is 20 percent of the

total value of Petitione rÔs damages totaling $40 million.

5 8. Using that same 20 percent and applying the current proportionality

methodology approved by the First District Court of Appeal in Eady ,

Petitioner has established that 20 percent of $376,327.20, or $75,265.44, is

the a mount of the confidential settlement fairly allocable to past medical

expenses and is the portion of the Medicaid lien payable to AHCA.

C ONCLUSIONS O F L AW

59 . AHCA is the state agency responsible for administering Florida's

Medicaid program. § 409.910(2), Fla. Stat.

6 0. DOAH has jurisdiction of this proceeding pursuant to section

409.910(17)(b) and is required to issue a f inal o rder.

6 1. The parties acknowledged that Petitioner bears the burden of proof, by

clear and convincing evidence, to show that the a mount payable to AHCA in

satisfaction of its Medicaid lien is less than the $279,299.76 it would be due if

the formula in section 40 9 .910(11)(f) was utilized in this proceeding . Gallardo

v. Dudek , 963 F.3d 1167, 1182 (11th Cir. 2020)(burden of proof is on the party

disputing the amount to be paid in satisfaction of a Medicaid lien, by clear

and convincing evidence).

6 2. Ñ Medicaid is a cooperative federal - state welfare program providing

medical assistance to needy people. Ò Roberts v. Albertson's Inc ., 119 So . 3d

457, 458 (Fla. 4th DCA 2012). Although state participation in this federal

program is voluntary, once a state elects to participate, it must comply with

the federal Medicaid law. Id.

6 3. Federal law requires that participating states seek reimbursemen t for

medical expenses incurred on behalf of Medicaid recipients who later recover

from legally liable third parties.

6 4. Under the United States Supreme Court's reasoning in Arkansas

Department of Health and Human Services v. Ahlborn , 547 U.S. 268 (2006),

the federal Medicaid anti - lien provision at 42 U.S.C. § 1396p(a)(1) prohibits a

Medicaid lien on any proceeds from a Medicaid recipient's tort settlement.

6 5. However, the provisions requiring states to seek reimbursement of

their Medicaid expenditures fr om liable third parties also create an express

exception to the anti - lien law authoriz ing states to seek reimbursement from

the medical expense portion of the recipient's tort recovery.

6 6. As noted, the Federal Medicaid Act limits a state's recovery to ce rtain

portions of the settlement funds received by the Medicaid recipient. In

Florida, this has been interpreted by the Florida Supreme Court to be the

amount in a personal injury settlement which is fairly allocable to past (not

future) medical expenses. Giraldo , 248 So. 3d at 56.

6 7. In this case, T.S.J. settled her personal injury claim against a third

party who was liable to her for the injuries related to AHCA's Medicaid lien.

Therefore, with certain restrictions, AHCA's lien may be enforced against

T. S.J.Ôs tort settlement.

6 8. The underlying question in this case is: h ow much is AHCA entitled to

recover from Petitioner for the medical payments it provided to T.S.J.?

6 9. Section 409.910(11) establishes a formula to determine the amount

that AHCA may re cover for medical assistance benefits it paid for the injured

party, from a judgment, award, or settlement the injured party receives from

a third party. Section 409.910(11)(f) states, in pertinent part:

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 third

party, the amount recovered shall be distributed as

follo ws:

1. After attorney's fees and taxable costs as defined

by the Florida Rules of Civil Procedure, one - half of

the remaining recovery shall be paid to the agency

up to the total amount of medical assistance

provided by Medicaid.

2. The remaining amount o f the recovery shall be

paid to the recipient.

3. For purposes of calculating the agency's recovery

of medical assistance benefits paid, the fee for

services of an attorney retained by the recipient or

his or her legal representative shall be calculated

a t 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 of

medical assistance provided by Medicaid. For

purp oses of this paragraph, Ñ medical coverage Ò

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 coverag e for workers'

compensation, personal injury protection, and

casualty.

70 . In substance, section 409.910(11)(f) provides that the A gency's

recovery for a Medicaid lien is the lesser of: (1) its full lien; or (2) one - half of

the total award, after deductin g attorney's fees of 25 percent of the recovery

and taxable costs, not to exceed the total amount actually paid by Medicaid

on the recipient's behalf. See Ag. for Health Care Admin. v. Riley , 119 So. 3d

514 (Fla. 2d DCA 2013).

7 1. In this case, the parties agreed that application of the default formula

outlined above , to T . S . J . Ôs settlement , would require payment to AHCA of

$279,299.76.

7 2. However, another corresponding section, 409.910(17)(b) , set forth

below, provides a proce dure by which a Medicaid reci pient may challenge the

amount AHCA seeks under the default formula. That process was utilized by

T.S.J. in this case.

7 3. More particularly, following the United States Supreme Court's

decision in Wos v. E.M.A ., 568 U.S. 627, 633 (2013), the Florida Legis lature

created an administrative process to challenge and determine what portion of

a judgment, award, or settlement in a tort action is properly allocable to

medical expenses. This establishes what portion of a petitioner's settlement

may be recovered by AHCA to reimburse it for its Medicaid lien. Section

409.910(17)(b) states:

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 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). The petition shall be

f iled with the Division of Administrative Hearings.

For purposes of chapter 120, the payment of funds

to the agency or the placement of the full amount of

the third - party benefits in the trust account for the

benefit of the agency constitutes final agency a ction

and notice thereof. Final order authority for the

proceedings specified in this subsection rests with

the Division of Administrative Hearings. This

procedure is the exclusive method for challenging

the amount of third - party benefits payable to the

ag ency. In order to successfully challenge the

amount payable to the agency, the recipient must

prove, by clear and convincing evidence, that a

lesser portion of the total recovery should be

allocated as reimbursement for past and future

medical expenses tha n 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.

7 4. In short, if Petitioner can demonstrate by clear and convinc ing

evidence that the portion of her confidential settlement fairly allocable as

payment for past medical expenses is less than the amount the agency seeks,

then the amount Petitioner is obligated to pay to AHCA on its lien is reduced.

75 . The First Distri ct Court of Appeal , in Eady , addressed the uncertainty

which had existed regarding what level of proof is adequate to meet this

burden. The holding and instructions in Eady have been consistently and

uni f ormly applied by the First District Court of Appeal since then.

7 6. Eady concluded, essentially, that a Medicaid recipient was entitled to

use the proportionality methodology to determine what amount of a n

undifferentiated settlement agreement should be fairly allocable to his or her

past medical expenses. 3

3 Under that method, the total value of the case, generally established by competent experts,

is compared against the settlement amount resulting in a ratio or percentage of recovery .

The amount of the outstanding Medicaid lien is multip l ied by the resulting percentage to

determine the reduced lien amou n t.

77. If this evidence is not sufficiently rebutted or contradicted by the

A gency, the amount calculated under the proportionality test is accepted as

an appropriate and fair allocation, and AHCA Ôs lien is reduced accordingly.

Ea d y , 279 So . 3d a t 1259.

78 . Since Eady , FloridaÔs First District Court of Appeal has consistently

held that where a Medicaid recipient presents uncontradicted evidence to

show that the pro rata allocation method supports a reduction of the

Medicaid lien calculated by the A gency under section 409.910(11)(f), it is

reversible error for an ALJ to reject the use of such methodology, unless there

is a reasonable basis in the record to do so. See , e.g., Bryan v. Ag. for Health

Care Admin ., 291 So. 3d 1033, 1036 (Fla. 1 st DCA 2020); Mojica v . Ag. for

Health Care Admin ., 285 So. 3d 393, 398 (Fla. 1st DCA 2019); Larrigui -

Negron v. Ag. for Health Care Admin ., 280 So. 3d 550 (Fla. 1st DCA 2019);

Soto v. Ag. for Health Care Admin . , 313 So. 3d 143 (Fla. 1 st DCA 2020) ; and

Domingo v. Ag. for Health Care Admin ., 313 So. 3d 144 (Fla. 1 st DCA 2020).

79 . In this case, there was no persuasive evidence presented by AHCA to

rebut or contradict the valuation of the case established by PetitionerÔs

experts or the amount of $75,265.44 presented by PetitionerÔ s experts as the

fair allocation of past medical expenses in PetitionerÔs confidential

settlement .

80 . Counsel for AHCA cross - examined PetitionerÔs experts but elicited no

compelling information or persuasive evidence to assail their opinions as to

the val ue of the case or their opinion that a fair allocation of past medical

expenses recovered in PetitionerÔs confidential settlement was $75,265.44.

81 . In short, PetitionerÔs expert testimony concerning a fair allocation of

the settlement agreement was uncha llenged by AHCA, without any contrary

facts or evidence in the record.

82. Contrary to AHCA Ôs argument in i t s P roposed F inal O rder , there is

nothing in Eady to suggest that the amount calculated under the pro rata

method ol ogy is only credible or appropriat e to use if the experts can Ñ break

down Ò or testify concerning the amounts of each type of damage contained in

the confidential settlement.

83. Aside from the fact that there was no Ñ break down Ò to review in th e

Ñ confidential Ò settlement, requiring this a dditional level of proof to support

the proportionality methodol o gy appears to run contrary to the comments

and concerns expressed by the court in Eady . Judge Jay aptly outlined these

concerns for the court as follows:

When the Medicaid recipient settles w ith the

tortfeasor or tortfeasors and the settlement, similar

to the present one, does not include itemized

allocations for damages, proving what portion of

the settlement was allocated to past medical

expenses is challenging. Wos , 568 U.S. at 634, 133

S. Ct. 1391. Even if the damages represented in the

settlement proceeds have been allocated by the

parties, there is always the distinct possibility Ñ that

Medicaid beneficiaries and tortfeasors might

collaborate to allocate an artificially low portion of

a se ttlement to medical expenses. Ò Id. ; see also

Ahlborn , 547 U.S. at 288, 126 S. Ct. 1752

(expressing the Supreme Court's concern over Ñ the

risk that parties to a tort suit will allocate away the

State's interest. Ò ). Further complicating matters is

when the s ettlement agreements are confidential,

like the ones in the instant case. Revealing the

terms of the agreements in this latter instance

risks piercing any number of privileges and,

potentially, opens a pandora's box of possible

sanctions against the partie s and their attorneys.

The answer to this dilemma has been for Medicaid

recipients to utilize a pro rata allocation

methodology, which has been met with decidedly

mixed reviews.

279 So. 3d a t 1256 .

84. Further, t here was no proof that PetitionerÔs experts were privy to any

itemization or breakdown of damages, nor was there any evidence that such

amounts were outlined in the confidential settlement.

85. In summary, based on the evidence and record in this case, the

undersigned is required to apply Eady , Lar rigui - Negron , Soto, Domingo , and

Mojica . It is conclude d, therefore, that 20 percent of $376,327.20, or

$75,265.44, is the amount due to AHCA. 4

O RDER

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

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

recover $75,265.44 from the amount recovered in PetitionerÔs personal injury

matter to satisfy i t s Medicaid lien.

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

County, Florida.

S

R OBERT L. K ILBRIDE

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 7th day of July , 2021 .

4 While the undersigned has expressed serious reservations about the propriety and use of

the pro rata methodol o gy, the undersigned is obliged to follow Eady , and those concerns must

be left to another day. See generally Tya - Marie Savain v. Ag . f or Health Care Admin . , Case

N o. 17 - 5946MTR (Fla. DOAH Feb . 26, 2018 ) .

C OPIES F U RNISHED :

Shena L. Grantham, Esquire Robert T. Bergin, Jr., Esquire

Agency for Health C are Administration Robert T. Bergin, Jr., P.A.

Building 3, Room 3407B 506 Datura Street , Suite B

2727 Mahan Drive West Palm Beach, Florida 33401

Tallahassee, Florida 32308

Christopher John Rush, Esquire

Thomas M. Hoeler, Esquire Christopher J. Rush & Associates, P.A.

Agency for Health C are Administration Compson Financial Center, Suite 205

2727 Mahan Drive, Mail Stop 3 1880 North Cong ress Avenue

Tallahassee, Flori da 32308 Boynton Beach, Florida 33426

James D. Varnado, General Counsel Alexander R. Boler, Esquire

Agency for Health C are Administration 2073 Summit Lake Drive , Suite 300

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32317

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Simone Marstiller, Secretary Agency for Health C are Administration

Agency for Health C are Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 3 2308

Tallahassee, Flor ida 32308 - 5407

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 p roceedings 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 fe es 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.