21-001122MTR David Torres | D. T., A Minor, By And Through His Parents Norvis Torres And Yamilet Torres, And Norvis Torres And Yamilet Torres Individually vs. Wellcare Health Plans, Inc.; Aetna Better Health Of Florida; And Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, September 21, 2021.

Summary: Petitioner proved, by clear and convincing evidence, that AHCA's Medicaid lien should be reduced to $53,153.10, pursuant to pro rata allocation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

** ,

Petitioners ,

vs. Case No . 21 - 1122MTR

A ETNA B ETTER H EALTH OF F LORIDA A ND

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondents .

/

F INAL O RDER

Pursuant to notice, a hearing was conducted in this case by video -

conference via Zoom on July 8, 2021, before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings ( " DOAH " ) .

A PPEARANCES

For Petiti oner: Floyd B. Faglie, Esquire

Staunton & Faglie, PL

189 East Walnut Street

Monticello, Florida 32344

Lara Anna Dabdoub, Esquire

Freidin Brown, P . A .

One Biscayne Tower

2 South Bisc a yne Boulevard, Suite 3100

Miami, Florida 33131

For Respondent Aetna Better Health of Florida :

Caroline Catchpole Spradlin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 2000

Tampa, Florida 33602

For Respondent Agency for Health Care Administration :

Alexander R. Boler, Esquire

2073 Summit Lake Drive, Suite 300

Tallahassee, Flo rida 32317

S TATEMENT O F T HE I SSUE

The issue is the amount payable to Respondents, Agency for Health Care

Administration ( " AHCA " ) and Aetna Better Health of Florida ( " Aetna " )

( " Respondents " ), in satisfaction of Respondents ' Medicaid lien of $478,856.78

fr om a $5,001,500.00 settlement received by Petitioner, D . T . ( " Petitioner " or

" DT " ), from a third party, pursuant to section 409.910, Florida Statutes.

P RELIMINARY S TATEMENT

On March 22, 2021, PetitionerÔs Petition to Determine Amount in

Satisfaction of Med icaid Liens ( " Petition " ) was referred to DOAH requesting

a hearing. In the Petition, Petitioner disputed the amount of Medicaid liens.

The Petition was assigned to the undersigned administrative law judge.

This case was noticed for hearing on June 22, 20 21. The parties stipulated

to continue the final hearing. Pursuant to notice, the final hearing proceeded

as rescheduled on July 8, 2021.

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

stipulated facts for which no further proo f 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 two expert witnesses:

Attorney Philip Freidin and Attorney R. Vinson Barrett. Petit ionerÔs

Exhibits 1 through 12 were received into evidence without objection.

Respondents did not present any witnesses or proffer any exhibits for

admission into evidence.

The proceedings of the hearing were recorded and transcribed. A one -

volume Transcri pt of the hearing was filed at DOAH on August 10, 20 2 1. The

undersigned granted the partiesÔ joint motion to extend time and extended

the proposed final order deadline. Petitioner and AHCA filed timely proposed

final orders that the undersigned has conside red in the preparation of this

Final Order. Aetna did not provide a proposed final order.

Unless otherwise noted, all statutory references are to the Florida

Statutes (2020).

F INDINGS O F F ACT

1. DT and his twin sister were born at 32 weeks, one day gesta tion by

emergency cesarean section ( " C - section " ) on October 4, 2014, in Miami,

Florida. Upon admission to the hospital, the nursing staff had difficulty

obtaining and maintaining the fetal heart rate for twin DT. DT experienced

12 minutes of prolonged hear t rate deceleration and/or bradycardia with

minimal variability. The nursing staff failed to timely communicate and/or

notify the obstetrician of this important/critical finding. Given the nursing

staffÔs failure to notify the obstetrician of the critical findings, a STAT

C - section was not ordered.

2. As a result of the delay in the C - section, DT suffered catastrophic and

permanent brain damage , and, as a result, he has little, if any, normal

function. DT cannot speak or walk, cannot appreciate his surroun dings, must

be fed, dressed, and cared for in every aspect of his life, including his bowel

and bladder.

3. DTÔs medical care related to the injury was paid by Medicaid. AHCA

through the Medicaid program provided $67,211.03 in benefits ; Department

of Healt h , ChildrenÔs Medical Services ( " CMS " ) , through the Medicaid

program provided $99,807.16 in benefits ; Aetna through the Medicaid

program provided $292,145.33 in benefits ; and WellCare of Florida

( " Wellcare " ) through the Medicaid program provided $19,693.26 in benefits.

The sum of these benefits, $478,856.78 constituted DTÔs entire claim for past

medical expenses.

4. DTÔs parents brought a medical malpractice action against the medical

staff and providers responsible for DTÔs care ( " Defendants " ) to recover all of

DTÔs damages , as well as their individual damages associated with DTÔs

injuries.

5. Philip Freidin ( " Freidin " ), a civil trial attorney with the law firm of

Freidin Brown, P.A. , in Miami, Florida , represented DT in his medical

malpractice action.

6. Freidin handled DTÔs medical malpractice case through to settlement.

The medical malpractice action was settled through a series of confidential

settlements in a lump - sum unallocated amount.

7. During the pendency of the medical malpractice action, AHCA, CMS,

Wellcare , and Aetna were notified of the action.

8. AHCA and Aetna did not commence a civil action to enforce its rights

under section 409.910(11) or intervene to join in DTÔs action against the

Defendants.

9. AHCA asserted a $67,211.03 Medicaid lien , and Aetna asserted a

$292,145.33 Medicaid lien, both of which were asserted against DTÔs cause of

action and settlement of that action.

10. By letter, AHCA and Aetna were notified of DTÔs settlement.

11. AHCA and Aetna have not filed a motion to set - asi de, void , or

otherwise dispute DTÔs settlement.

12. The Medicaid program through AHCA, CMS, WellCare , and Aetna

spent $478,856.78 on behalf of DT, all of which represents expenditures paid

for DTÔs past medical expenses.

13. DTÔs taxable costs incurred in securing the settlement totaled

$152,060.30.

14. Application of the formula at section 409.910(11)(f) to DTÔs settlement

requires payment of the full $67,211.03 AHCA lien and $292,145.33 Aetna

lien.

15. Petitioner has deposited the Medicaid lien amount in an interest -

bearing account for the benefit of AHCA pending an administrative

determination of AHCAÔs rights, and this constitutes " final agency action " for

purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17).

16. Repayment to AHCAÔ s Medicaid program is prioritized by law and

contract over Medicaid - managed care plans, such as Aetna.

Facts Adduced at Hearing

17. Petitioner presented expert testimony from Attorney Freidin. Freidin

is a 5 2 - year trial lawyer who has specialized in perso nal injury and medical

malpractice. During his practice, he has routinely handled numerous

catastrophic plaintiff injury cases , including cases with children. Freidin

became b oard c ertified in c ivil t rial by The Florida Bar in 198 9 , and he has

handled over 200 jury trials. Freidin is also a long - term active member and

past president of the Florida Justice Association. During his career, Freidin

has taught over 150 continuing legal education courses on the subject matter

of trial practice.

18. FreidinÔs pra ctice and expertise also encompasses the regular

valuation of damages for injured parties. He testified that he routinely

reviews clientsÔ cases to determine their value by assessing the economic and

non - economic damages. Freidin explained that , as a part of his practice, he

makes regular assessments concerning the value of damages suffered for

each case. He also detailed his process for making those assessments. Freidin

explained that he frequently reviews jury verdict reports and stays abreast of

jury ver dicts , as well as roundtable d cases with other attorneys when

determining damage amounts.

19. Freidin testified that as part of his law practice , he also routinely

participates in the process of allocation of settlement amounts. He explained

that he is ver y familiar with how to allocate in the context of health

insurance liens, workersÔ compensation liens, and Medicare set - asides.

20. At the hearing, Freidin described the incident that led to DTÔs injuries.

He also explained the extent of DTÔs injuries and testified about the medical

malpractice claim. He testified that there were three periods of delay in

ordering the emergency C - section during DTÔs birth where DT sustained

decreased loss of oxygen: one for eight minutes; one for 12 minutes, where no

one ca lled a doctor to do anything; and one for 17 minutes, which caused DT

severe brain damage. As a result of the delays, Freidin explained that DT has

seizures, cannot feed himself, walk, talk, bathe, dress himself, or do anything ,

while his twin sister is no rmal. Freidin testified that DT was born with

catastrophic brain damage and the injury has " completely robbed him of life. "

He explained further that DT " literally has no human functions " and no one

knows his level of suffering or cognition.

21. Freidin d escribed how DTÔs parents are remarkable and have taken

excellent care of DT. They have been devastated by DTÔs injuries and

seizures, which have required them to stop sleeping in the same bedroom.

DTÔs mother sleeps in the room with DT to care for him.

2 2. Freidin testified that he calculated DTÔs full value of damages suffered

at $45 million. Freidin credibly testified regarding the process he took in

evaluating and determining the reasonable value of damages suffered in DTÔs

case. Freidin explained that he served as lead counsel on the team for DTÔs

medical malpractice case with Lara Dab d oub, his paralegal, Jon Freidin, and

an appellate firm. He knows the whole case and has reviewed DTÔs medical

records, deposed the doctors, experts, and nurses in the ca se, as well as

reviewed the unsworn statement s, and met with the family.

23. Freidin explained that while he was litigating DTÔs case, a life care

plan was prepared detailing DTÔs future medical care needs and the costs of

each item. Freidin also explaine d that he had an economist review the life

care plan to calculate the present value of DTÔs future care , as well as the

present value of his claim for future lost earnings. Freidin testified that the

calculations of the economistÔs present money values of DTÔs future medical

care and lost earnings ranged from $16 million at the low end to $60 million

at the high end.

24. Freidin testified further that the life care plan and economist report 1

he reviewed for DTÔs case has a damage amount consistent with oth er cases

of children with DTÔs type of injury and what he has seen in the past.

25. Freidin further explained that in order to determine the full amount of

damages suffered, the economic damages would have to be added to the non -

economic damages.

26. Frei din testified he evaluated DTÔs non - economic damages based on

his parentsÔ loss of consortium and DTÔs loss of enjoyment of life. Based on his

training and experience, Freidin determined each of DTÔs parentsÔ claim for

loss of consortium was valued at $5 m illion and DTÔs value for loss of

enjoyment of life at " least $20 and perhaps $25 million, " which totals $30 to

$35 million for non - economic damages.

27. Freidin also explained that the jury verdicts in PetitionerÔs Exhibit 12

were comparable and instruct ive for this case. He clarified that the jury

verdict package averaged an award of non - economic damages for the injured

child of $19.4 million, which supports DTÔs $20 to $25 million non - economic

valuation he made.

28. Freidin further explained that when determining DTÔs value of

damages , he also roundtabled DTÔs case several times with other lawyers to

help determine the value of a profoundly brain injured child during labor and

1 The undersigned is not persuaded by A HCAÔs contention that the life care plan, PetitionerÔs

Exhibit 7, and economist report, PetitionerÔs Exhibit 8, are hearsay because neither the life

care plan nor the economist report were offered for the truth of the matter asserted but were

offered as ev idence of the more general value of the claim in litigation.

delivery. Freidin testified that the general consensus from the roundtabling

with other attorneys was the conservative value of DTÔs case is $45 million.

29. Freidin explained how DTÔs case was vigorously defended , and some

experts opined strong defenses. Freidin testified that , ultimately , DTÔs case

was mediated and settled for $ 5,001,500.00. Freidin also testified that the

settlement amount did not fully compensate DT and his parents for the full

value of their damages.

30. FreidinÔs unrefuted testimony that placed the value of all damages at

$45 million concluded that DTÔs sett lement only recovered 11.1 percent of the

value of his damages. Freidin opined credibly that because DT recovered only

11.1 percent of his damages, he recovered from the settlement only 11.1

percent of the $478,856.78 claim for past medical expenses or $53 ,153.10 of

the settlement to past medical expenses.

31. At hearing, R. Vinson Barrett ( " Barrett " ) also provided an expert

opinion regarding the value of DTÔs damages and allocation of past medical

expenses. Barrett is a more than 40 - year trial lawyer and partner with the

law firm of Barrett Nonni & Homola, in Tallahassee, Florida , with an active

civil practice. Barrett 's practice focuses on plaintiffsÔ medical malpractice and

wrongful death law. He has handled cases involving catastrophic brain injury

to c hildren and routinely litigates jury trials.

32. From his practice, Barrett is familiar with reviewing medical records,

life care plans, and economist reports concerning catastrophic brain damage

to children. He stays abreast of jury verdicts by reading j ury verdict reports

and discussing cases with other trial attorneys. Barrett is also a member of

the Capital City Justice Association and the Florida Justice Association.

33. As a routine part of his practice, Barrett makes assessments

concerning the valu e of damages suffered by injured parties , and he

explained the process for making the assessments. He testified that as part of

his practice, he also has experience with settlement allocations and it has

been a part of his law practice in the context of he alth insurance liens,

Medicare set - asides, and workersÔ compensation liens.

34. Barrett testified that he has been accepted as an expert in the

valuation of damages in federal court , as well as in over 30 Medicaid lien

hearings regarding value of damages and allocations to past medical

expenses at DOAH.

35. During the hearing, Barrett detailed how he determined the value of

DTÔs case. He reviewed the exhibits in this case, the report of DTÔs court -

appointed guardian ad litem, and the J oint P re - hearing S tip ulation. Barrett

explained that he is familiar with DTÔs injuries and the three periods of

prolonged lack of oxygen that resulted in systemic brain injuries to the point

that DT is unable to care for himself in any way. Barrett detailed how DT is

100 perce nt dependent on someone to take care of him because he cannot

walk, talk, control his bowel or bladder, or feed himself. Barrett further

testified that DT " has no life but one hook[ed] to tubes and È [h]is life has

been totally taken away from him. "

36. B arrett testified that based on his professional training and

experience of reviewing so many life care plans and economist reports in

cases where infants are brain injured, he believed that DTÔs damages have a

value of at least $45 million. He explained th at economic damages would be

between $16 and $60 million because of DTÔs needs. The costs would be high

because DT needs everything from a house that has to be equipped to a van

for transport, as well as diapers, complicated medical procedures, and

around - the - clock , 24 - hour - a - day nursing care.

37. Barrett also opined that the non - economic damages for DTÔs pain and

suffering, past and future, is " as bad as you can get. " Barrett explained that

the parentsÔ lives have been turned around and there really w ill n o t be any

vacations for them. They will just be taking care of DT. Barrett testified that

after reviewing PetitionerÔs Exhibit 12, the package of jury verdicts, and

looking at the cases with some type of birth injury, the average damages for

pain and suffe ring was $19.4 million. He testified that he would value non -

economic damages between $20 to $25 million.

38. Barrett also testified that the settlement amount of $5,001,500.00 did

not fully compensate DT for all the damages he and his parents suffered.

3 9. Barrett used his allocation experience to credibly testif y that using the

conservative value of all damages, $45,000,000.00, the $5,001,500.00

settlement represents a recovery of 11.1 percent of the value of the damages.

Barrett further testified that b ecause the settlement was only 11.1 percent of

the value of the damages recovered, only 11.1 percent of the $478,856.78

claim for past medical expenses, $53,153.10, should be recovered. Barrett

testified that his methodology of determination was reasonable to allocate

$53,153.10 of the settlement to past medical expenses in this case. BarrettÔs

testimony was uncontradicted and persuasive on this point.

40. Barrett explained that his methodology of calculating the $53,153.10

allocation to past medical expens es in this case was consistent with the

allocations method used from the approximate 30 Medicaid third - party

recovery cases where he testified previously as an expert at DOAH.

Ultimate Findings of Fact

41. The testimony of PetitionerÔs two experts regardi ng the total value of

damages was credible, unimpeached, and unrebutted. Petitioner proved that

the settlement does not fully compensate DT for the full value of damages.

42. Based on the forgoing, the evidence supports, and it is found , that

$45 million, as a full measure of PetitionerÔs combined damages, is a

conservative and appropriate figure against which to calculate a lesser

portion of the total recovery that should be allocated as reimbursement for

the Medicaid lien for past medical expenses.

43. A s testified to by the experts, DT ' s settlement recovery represents

only 11.1 percent of the total value of his claim.

44. AHCA and Aetna did not offer any witnesses, alternate opinions, or

documentary evidence as to the value of damages, or methodology. He nce,

PetitionerÔs evidence is unrebutted.

45. Thus, Petitioner demonstrated that the settlement allocation should

be based on the ratio between the settlement amount of $5,001,500.00 and

the conservative valuation of $45 million, meaning 11.1 percent of t he

settlement proceeds should be allocated to past medical expenses. Hence,

Petitioner has proven $53,153.10 of the settlement represents AHCAÔs

reasonable and fair reimbursement for past medical expenses.

C ONCLUSIONS O F L AW

46. DOAH has jurisdiction ove r 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 ) . AHCA is the agency authorized to administer FloridaÔs Medicaid

program. See § 409.902, Fla. Stat.

47. Petitioner bears th e burden to prove, by clear and convincing evidence ,

that the amount payable to AHCA in satisfaction of its Medicaid lien is less

than the $478,856.78 that would be due if the formula in section

409.910(11)(f) were applied in this proceeding. Gallardo v. D udek , 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).

48. The Medicaid program " provide[s] federal financial assistance to

States t hat choose to reimburse certain costs of medical treatment for needy

persons. " Harris v. McRae , 448 U.S. 297, 301 (1980). Though participation is

optional, once a state elects to participate in the Medicaid program, it must

comply with federal requirements . Id.

49. 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 42 U.S.C.

§ 1396a(a)25; § 409.910(4), Fla. Stat.; A rk. Dep't of Health & Human Servs. v.

Ahlborn , 547 U.S. 268, 276 (2006).

50. To secure reimbursement from liable third parties, the S tate must

require the Medicaid recipient assign to the state his right to recover medical

expenses from those third partie s. In relevant part, 42 U.S.C. § 1396a(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 13 has a legal liability to

make payment for such assistance, the State ha s in

effect laws under which, to the extent 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

payme nt by any other party for such health care

items or services.

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

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

authorizes and requires the State, through A HCA, to be reimbursed for

Medicaid funds paid for a recipient's medical care when that recipient later

receives a personal injury judgment or settlement from a third party. Smith

v. Ag. for Health Care Admin. , 24 So. 3d 590 (Fla. 5th DCA 2009). The statute

creates an automatic lien, on behalf of AHCA, on any such judgment or

settlement for the medical assistance provided by Medicaid. § 409.910(6)(c),

Fla. Stat.

52. The Florida Supreme Court has determined that the S tateÔs recovery

of certain portions of set tlement funds received by a Medicaid recipient to be

the amount in a personal injury settlement fairly allocable to only past

medical expenses. Giraldo v. Ag. for Health Care Admin. , 248 So. 3d 53, 56

(Fla. 2018).

53. The amount to be recovered for Medica id medical expenses 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, 516 n.3 (Fla. 2d DCA 2013).

54. Section 409.910(11)(f) provides, in p ertinent part, that :

(11) The agency may, as a matter of right, in

order to enforce its rights under this section,

institute, intervene in, or join any legal or

administrative proceeding in its own name in one

or more of the following capacities: individually, as

subrogee of t he recipient, as assignee of the

recipient, or as lienholder of the collateral.

* * *

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 l egal representative is a party which results

in a judgment, award, or settlement from a third

party, the amount recovered shall be distributed as

follows:

* * *

1. After 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 agencyÔ 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 at 25 percent of the judgment, award, or

settlement.

4. Notwithstanding any provision of th is 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

purposes of this paragraph, " medical coverage "

means any benefits under health insurance, a

hea lth maintenance organization, a preferred

provider arrangement, or a prepaid health clinic,

and the portion of benefits designated for medical

payments under coverage for workersÔ

compensation, personal injury protection, and

casualty.

55. The parties sti pulated that the amount due to AHCA and Aetna ,

respectively , in satisfaction of their liens, pursuant to the formula set forth in

section 409.910(11)(f), is $67,211.03 and $292,145.33. It is undisputed that

Medicaid provided $478,856.78 in past medical exp enses for DT and that

Respondents asserted a Medicaid lien against Petitioner's $5,001,500.00

settlement and the right to seek reimbursement for its expenses.

Respondents are utilizing the mechanism set forth in section 409.910(11)(f) to

enforce their righ t.

56. Petitioner, however, asserts that a lesser amount is owed to

Respondents because Petitioner did not recover the full value of his damages.

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

AHCA's presumptively correct calcul ation 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 the formula in section

409.910(11)(f). Section 409.910(17)(b) provides, in pertinent part, that:

If federal law limits the agency to reimbursement

from the recovered medical expense damages, a

recipient, or his or her legal representative, may

contest the amount designa ted 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 fu ll 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. 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 action and notice

thereof. Final order authority for the proceedings

specified in this subsection rests with the Divis ion

of Administrative Hearings. This procedure is the

exclusive method for challenging the amount of

third - party benefits payable to the agency. In order

to successfully challenge the amount designated as

recovered medical expenses, the recipient must

prov e, 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 calculated 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.

57. An administrative procedure for adversarial testing of 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, Ag. for Health Care Admin. , 143 So.

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

opportunity to seek 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 " ).

58. Under circumstances comparable to those in this case, where the

Medicaid recipient provided expert testimony regarding the appropriate

share of settlement funds to be allocated to past medic al expenses and the

agency failed to present any evidence to rebut the expertsÔ opinions, recent

appellate decisions have accepted a proportional reduction as a valid basis for

making the required distribution. Eady v. State, Ag . for Health Care Admin . ,

27 9 So. 3d 1249 (Fla. 1st DCA 2019).

59. Florida courts have consistently provided guidance and held that it is

reversible error for an ALJ to reject the unrebutted competent expert

testimony of a Medicaid recipientÔs proposed pro rata allocation method to

p ast medical expenses. See Larrigui - Negron v. State, Ag. f or Health Care

Admin. , 280 So. 3d 550 (Fla. 1st DCA 2019); Mojica v. State, Ag. f or Health

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

60. The First District Court of Appeal, in Bryan v. S tate, Agency for

Health Care Administration , 291 So . 3d 1033 (Fla. 1st DCA 2020), also

upheld the validity of proportional reduction as a valid means of establishing

a lesser portion of the total recovery subject to reimbursement pursuant to

section 409.91 0(17)(b). The court explained that:

[I]n this case, [the recipient] presented unrebutted

competent substantial evidence to support that the

value of her case was at least $30 million. She also

presented unrebutted competent substantial

evidence that her pr o rata methodology did indeed

support her conclusion that $38,106.28 was a

proper allocation to her past medical expenses.

Such methodology was similar to the methodology

employed in Giraldo , Edy , and Mojica . AHCA did

not present any evidence to challenge [the

recipientÔs] valuation, nor did it present any

alternative theories or methodologies that would

support the calculation of a different allocation

amount for past medical expenses.

Id. at 1036.

61. In this case, as in Bryan , two expert trial attorneys gave unrebutted

testimony to establish conservative (and uncontested) valuation of

PetitionerÔs damages. As in Bryan , the experts opined that a proportional

reduction was the proper method of determining the portion of the recovery,

which should be alloca ted as past medical expenses. In this matter, AHCA

and Aetna failed to present evidence that PetitionerÔs pro - rata methodology

was inaccurate or that another method would be more appropriate to apply.

62. Even though AHCA cross - examined PetitionerÔs exper ts, AHCA did

not elicit any compelling information or persuasive evidence to refute or

undermine Freidin or BarrettÔs opinions that a fair allocation of past medical

expenses recovered from PetitionerÔs settlement was $53,153.10.

Additionally, Respondents failed to contest or contradict the reduced amount

presented by PetitionerÔs experts as the fair allocation of past medical

expenses from PetitionerÔs settlement. In short, PetitionerÔs expert testimony

concerning a fair allocation of the settlement agreem ent was unchallenged by

Respondents, without any contrary or contradictory facts or evidence in the

record.

63. Where uncontradicted testimony is presented by the recipient, the

factfinder must have a " reasonable basis in the evidence " to reject it. Giral do ,

248 So. 3d at 56 (quoting Wald v. Grainger , 64 So. 3d 1201, 1205 - 06

(Fla. 2011)). In the instant case, as in Eady , Larrigui - Negron , Mojica , and

Bryan , the experts ' uncontradicted testimony was clear and concise , and

Respondents provided no reasonable b asis to reject the testimony.

64. Accordingly, Petitioner has proven his case by clear and convincing

evidence, as required by section 409.910(17)(b). Based on the foregoing,

since 11.1 percent of $478.856.78 is $53,153.10, that figure represents the

appr opriate proportionate share of the total recovery that should be allocated

to the Medicaid lien.

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

$53,153.10 i n satisfaction of its Medicaid lien. Aetna Better Health of Florida

is entitled to $0 from the settlement.

D ONE A ND O RDERED this 21st day of September , 2021 , in Tallahassee,

Leon County, Florida.

S

J UNE C. M CKINNEY

Adm inistrative 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 21st day of September , 2021 .

C OPIES F URNISHED :

Alexander R. Boler, Esq uire Kimberly L. Boldt, Esquire

2073 Summit Lake Drive , Suite 300 Boldt Law Firm

Tallahassee, Florida 32317 160 West Camino Real , Suite 262

Boca Rat on, Florida 33432

Lara Anna Dabdoub, Esquire

Freidin Brown, P . A . Lauren Hirsch, Esquire

One Biscayne Tower Aetna Better Health of Florida

2 South Bisc a yne Boulevard, Suite 3100 8200 Northwest 41st Street , Suite 125

Miami, Florida 33131 Doral, Florida 33166

Floyd B. Faglie, Esquire Richard J. Shoop, Agency Clerk

Staunton & Faglie, PL Agency for Health Care Administration

189 East Waln ut Street 2727 Mahan Drive, Mail Stop 3

Monticello, Florida 32344 Tallahassee, Florida 32308

Caroline Catchpole Spradlin, Esquire Thomas M. Hoeler, Esquire

Phelps Dunbar, LLP Agency for Health Care Administration

100 South Ashley Drive, Suite 2000 2727 Mahan Drive, Mail Stop 3

Tampa, Florida 33602 - 5315 Tallahassee, Florida 32308

Shena L. Grantham, Esquire Simone Marstiller, Secretary

Agency for Health Care Administration Agency for Health Care Administration

Building 3, Room 3407B 2727 Mahan Drive, Building 3

2727 Mahan Drive Tallahas see, Florida 32308 - 5407

Tallahassee, Florida 32308

William H. Roberts, Acting Gen e ral Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

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 Appella te Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompan ied

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.