21-001293MTR Kanesha Harley vs. Agency For Health Care Administration Status: Appeal.

Summary: Petitioner failed to establish a basis for a reduction of the Medicaid lien, and application of the formula found in section 409.910(11)(f) results in a Medicaid lien amount of $128,032.84.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K ANESHA H ARLEY ,

Petitioner ,

vs. Case No. 21 - 1293MTR

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

F INAL O RD ER

Pursuant to notice, Administrative Law Judge (ALJ) Robert J. Telfer III

conducted a final hearing on May 20, 2021, using the Zoom web - conference

platform, pursuant to sections 120.569 and 120.57(1), Florida Statutes .

A PPEARANCES

For Petitioner: Michael Bross, Esquire

Michael Bross & Bryan Savy, PLLC

Suite 1

997 South Wickham Road

Melbourne, Florida 32904

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 for the undersigned to determine is the amount payable to

Respondent, Agency for Health Care Administration (AHCA), as

reimbursement for medical expenses paid on behalf of Petitioner Kanesha

Harley (Ms. Harley), pursuant to section 409.910, Florida Statut es (2019),

from settlement proceeds Petitioner received from third parties.

P RELIMINARY S TATEMENT

On March 23, 2021, Petitioner filed a Petition to Reduce Medicaid Lien or

for Equitable Distribution. The Petition challenged AHCAÔs placement of a

Medicaid l ien in the amount of $123,931.54 on PetitionerÔs $370,000 .00 in

settlement proceeds from third parties.

The undersigned set this matter for a final hearing, by video conference,

on May 20, 2021. The parties filed their Joint Pre - h earing Stipulation on

Ma y 17, 2021, which contained a statement of admitted and stipulated facts

for which no further proof would be necessary. The undersigned has

incorporated those stipulated facts into the Findings of Fact below, to the

extent necessary.

The final hearing com menced on May 20, 2021. Petitioner presented the

testimony of Ms. Harley, and Gary Holland, Esquire, PetitionerÔs expert on

personal injury damages. The undersigned admitted into evidence

PetitionerÔs Exhibits P1 through P9, which includes Exhibits P6a and P6b.

Respondent presented no witnesses and offered no exhibits at the final

hearing.

The parties did not order a t ranscript of the final hearing. Respondent

timely submitted its Proposed Final Order on June 1, 2021, which the

undersigned has considered i n the preparation of this Final Order. Petitioner

submitted its Proposed Final Order on June 2, 2021, which was a day late,

but the undersigned , finding no prejudice or advantage to either party, has

considered it in the preparation of this Final Order.

A ll references are to the 2019 codification of the Florida Statutes, unless

otherwise indicated.

F INDINGS O F F ACT

1. AHCA is the state agency charged with administering the Florida

Medicaid program, pursuant to c hapter 409.

2. In October 2013, Ms. Harley, then 19 years old, was struck by a bullet

while on the property of liable third parties (the Underlying Defendants).

3. Ms. Harley testified that the shooting occurred when she was at a

restaurant, which was connected to another business, with friends. Whi le

outside the restaurant to retrieve her wallet, two persons unknown to

Ms. Harley began shooting at each other in the parking lot area. Ms. Harley

initially avoided these shots, but after an employee of the restaurant

announced that it was ok to go back outside, she was struck by a bullet.

4. Ms. Harley received medical care as a result of her injuries, which

included a diagnosis of being an incomplete paraplegic (meaning, among

other things, that Ms. Harley is unable to walk and cannot feel the bottom of

her legs). Ms. Harley underwent a prolonged hospitalization, is currently

unable to work, and expects a lifetime of partial paralysis.

5. Prior to her injury, Ms. Harley had completed the ten th grade, and had

a part - time job earning minimum wage. Since her injury, Ms. Harley has

been unable to work. She is partially paralyzed from the waist down, and

relies on friends and family members for assistance.

6. Ms. HarleyÔs medical care related to her injury was paid by Medicaid,

and AHCA through the Medicaid program provided $123,931.54. Another

Medicaid entity, Equian, paid Ms. Harley $15,648.50 on her behalf as well.

The undersigned finds that Ms. HarleyÔs past medical expenses total

$139,580.04 (and notes that this figure is more than the lien amount claime d

in the Petition).

7. Petitioner filed a lawsuit against the Underlying Defendants, alleging

negligent security and premises liability.

8. During the pendency of PetitionerÔs lawsuit, AHCAÔs authorized agent,

in a letter dated January 26, 2020, stated th at Ñour office calculated

MedicaidÔs current and final lien in the amount of $123,931.54. Accordingly,

payment of $123,931.54 will satisfy our lien.Ò

9. More than seven years after Ms. HarleyÔs injury, Petitioner and the

Underlying Defendants settled the lawsuit for a total of $370,000.00. 1

10. A ÑLetter of UnderstandingÒ authored by PetitionerÔs counsel, that he

provided to the Underlying Defendants, states, in pertinent part:

A[s] you know, we represent KANESHA HARLEY,

in regards to the above reference d accident and this

letter of understanding is to outline that the

Plaintiff has allocated 5% of the total settlement of

$370,000 or $18,500 of the total settlement amount

for Kanesha HarleyÔs past medical bills, for any and

all purposes, including Florida Medicaid liens and

other liens.

The basis for this reduction is simple equity.

Ms. Harley, then 19, was diagnosed as an

incomplete paraplegic after the subject incident in

October of 2013. The Plaintiff filed suit against [the

Underlying Defendants ] and was able to obtain a

total settlement of $370,000.00, which took into

account the serious liability issues under Florida

premises liability, negligent security standards.

These facts, along with difficulty in prosecuting the

case under COVID - 19, othe r technical difficulties,

the fact that the case is almost 8 years old, and the

unknown affect [sic] COVID - 19 may have on a jury

is potentially fatal to PlaintiffÔs cause of action,

made this a fair and reasonable settlement, and

makes this allocation nece ssary.

11. In addition to the ÑLetter of Understanding,Ò Petitioner introduced two

documents entitled draft closing statements, that reflect the total amount of

the settlement, the amount of attorneyÔs fees ($148,000) and costs

1 PetitionerÔs settlement with the Underlying Defendants requires that the identities of the

Underlying Defendants remain confidential. Accordingly, the undersigned has not revealed

their identities in this Final Order, and notes that Exhibits P1, P5, P6a, P 6b, and P7 Ð all of

which reference the identities of the Underlying Defendants Ð shall remain confidential.

($21,434.33) incurred by Petitioner, the amount of a litigation loan incurred

by Petitioner, and the amount of the Medicaid lien (in one copy, it contains

the reduced amount requested by Petitioner, in the other, it contains no

reduction of the lien). Other than these documents, P etitioner introduced no

evidence as to how the parties allocated the settlement of the litigation with

the Underlying Defendants.

12. AHCA did not commence a civil action to enforce its rights under

section 409.910 or intervene in PetitionerÔs lawsuit agai nst the Underlying

Defendants.

13. Application of the formula set forth in section 409.910(11)(f) to

PetitionerÔs $370,000.00 settlement authorizes payment to AHCA of

$128,032.84. The undersigned arrives at this calculation as follows:

Settlement Amount $370,000.00

AttorneysÔ Fees (capped at 25% pursuant to $92,500.00

section 409.910(11)(f)3.

Taxable Costs $21,434.44

Remaining Recovery $256,065.67

Amount Recoverable (pursuant to section $128.032.84

409.910(11)(f)1., Ñone - half of the remaining (this amount is one - half of

recovery shall be pa id to [AHCA] up to the the remaining recovery,

total amount of medical assistance provided by which is lower than the

Medicaid.Ò) Medicaid lien or total past

medical expenses)

Expert Witness Testimony of Mr. Hollan d

14. Petitioner presented the testimony of Mr. Holland, a trial attorney

who has handled in excess of 1,000 personal injury cases in the county,

circuit, and federal courts of Florida. Mr. Holland has conducted numerous

jury trials and has also resolved c ases in mediation and arbitration.

15. Petitioner moved, and the undersigned accepted, Mr. Holland as an

expert in personal injury litigation. AHCA did not oppose Mr. HollandÔs

designation as an expert.

16. Mr. Holland testified that he is familiar with th e type of injury that

Ms. Harley suffered. He is also familiar with the legal standards for premises

liability and negligent security, and stated that he was familiar with

judgments that include monetary awards Ñdue to the actions of others.Ò

17. Mr. Holla nd stated that there were various liability issues in

PetitionerÔs lawsuit. He testified that it is difficult to prove that a landowner

knew of a dangerous condition, or that a landowner could anticipate a

shooting, which is an intentional act. Mr. Holland opined that Petitioner had

numerous challenges in holding either of the Underlying Defendants liable

because it would be difficult to convince a jury that the cause of her injury

was foreseeable.

18. Mr. Holland opined, based on his experience, that an es timate of the

overall value of the damages to Petitioner was in the $15 to $20 million

range. Neither Petitioner nor Mr. Holland offered any evidence of similar jury

verdicts or settlements to substantiate this opinion; rather, Mr. HollandÔs

opinion was ba sed on his experience to arrive at this estimate.

19. Mr. Holland further opined that allocating 5% of the settlement Ð

which is $18,500 .0 0 Ð to PetitionerÔs past medical expenses was a Ñreasonable

allocation.Ò Mr. HollandÔs opinion on the allocation of 5% of the settlement of

PetitionerÔs lawsuit to her past medical expenses was not based on the typical

calculation of comparing the value of the damages in the lawsuit (which are

often based on comparison to actual, similar verdicts or settlements) to the

actual recovery in the settlement, and deriving a ratio or percentage from

that calculation that could be used to reduce the amount of the Medicaid lien

(the pro rata allocation methodology). 2

20. In fact, PetitionerÔs request to reduce the Medicaid lien, which

Mr. Holland supported, is not based on the pro rata allocation methodology,

but rather, based on PetitionerÔs ÑLetter of Understanding,Ò which designated

2 See, e.g., Eady v. Ag. for Health Care Admin. , 279 So. 3d 1249 (Fla. 1st DCA 2019)

(explaining the pro rata allocation methodology).

5% of the entire settlement proceeds as an appropriate amount to satisfy the

Medicaid lien, based on Ñsimple equity.Ò

21. On cross - examination, Mr. Holland stated that his opinion of $15 to

$20 million in damages was not broken down by any specific category, but

stated that PetitionerÔs loss of wages over the course of her life, given her

relatively long - life expectancy, as well as pain and suffering, loss of

enjoyment of life, and possible loss of consortium claims, led him to his

opinion. He further stated that based on his experience with this type of

lawsuit, but where liability is clear, he would not recommend that a client

accept less than $10 million in settlement.

22. When asked on cross - examination specifically concerning the

allocation of 5% of the settlement of PetitionerÔs lawsuit to her past medical

expenses, Mr. Holland stated that he had no personal knowledge of the

partiesÔ decision to designate this percentage, but relied on the ÑLetter of

UnderstandingÒ authored by PetitionerÔs counsel, which he admitted relied

on Ñequity.Ò However, Mr. Holland additionally opined that he was

comfortable allocating 95% of the settlement to PetitionerÔs noneconomic

damages, as well as her work life expectancy earning minimum wage,

although he admitted that he had not computed any of these figures.

Ultimate Findings of Fact

23. The undersigned finds that th e opinion of Mr. Holland concerning the

value of PetitionerÔs lawsuit, which, after cross - examination, he admitted was

$10 million, was not based upon sufficient facts or data, such as a comparison

to actual similar verdicts or settlements of these types o f lawsuit, but rather

his personal estimate based on his experience. See § 90.702(1), Fla. Stat.

(requiring that an expert, inter alia, base his or her opinion Ñupon sufficient

facts or data.Ò). Further, Mr. Holland did not break down the basis for his

val uation of the lawsuit into specific categories of damages and expenses ( i.e.,

future medical expenses, pain and suffering, lost earning capacity, etc.), but

opined that he considered many of these categories in arriving at his

valuation of PetitionerÔs law suit. Although Mr. Holland credibly testified

concerning his considerable experience as a personal injury attorney, the

undersigned cannot credit his opinion concerning the valuation of PetitionerÔs

damages.

24. However, Mr. HollandÔs opinion concerning th e value of PetitionerÔs

lawsuit appears irrelevant to PetitionerÔs theory of recovery. The undersigned

finds that Petitioner did not, in any way, attempt to establish that the

undersigned should reduce her Medicaid lien pursuant to the pro rata

allocation methodology, which has been approved in numerous proceedings

before the Division of Administrative Hearings (DOAH) , as well as FloridaÔs

appellate courts, as a reasonable, fair, and accurate methodology that is

consistent with Arkansas Department of Health and Human Services v.

Ahlborn, 547 U.S. 268 (2006), for allocating the settlement proceeds when the

underlying third - party action is settled for less than the full value of the case.

25. Rather, Petitioner asks the undersigned to approve a 5% allocation o f

her entire settlement proceeds to satisfy her Medicaid lien, based on a ÑLetter

of UnderstandingÒ between Petitioner and the Underlying Defendants, that

states Ñ[t]he basis for this reduction is simple equity[,]Ò and Mr. HollandÔs

testimony that relied o n this ÑLetter of Understanding,Ò as well as his

unsupported calculation that he would allocate 95% of the settlement

proceeds to PetitionerÔs noneconomic damages and lost earning capacity.

Section 409.910(1) explicitly abrogates the application of princip les of equity

in this proceeding; further, DOAH is not a Ñcourt of equity.Ò The undersigned

finds no basis, in fact or law, for such a reduction.

26. The undersigned finds that Petitioner failed to establish, by either

clear and convincing evidence, or a p reponderance of the evidence, support for

PetitionerÔs allocation of 5% of the settlement proceeds ($18,500.00) to

PetitionerÔs past medical expenses as a basis for reducing the Medicaid lien.

27. Accordingly, AHCA is entitled to payment of $128.032.84, pu rsuant to

the formula set forth in section 409.910(11)(f).

C ONCLUSIONS O F L AW

28. DOAH has jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.57(1) and 409.910(17 ) . Giraldo v.

Ag. for Health Care Admin. , 248 So. 3d 53 (Fla. 2018).

29. AHCA is the agency authorized to administer FloridaÔs Medicaid

program. § 409.902, Fla. Stat.

30. Section 409.910(17)(b) states that PetitionerÔs burden of proof to

challenge the statutory lien is the clear and convincing e vidence standard.

Previously, a federal injunction barred AHCA from requiring the clear and

convincing standard, but the Eleventh Circuit recently reversed that

injunction. See Gallardo v. Dudek, 963 F.3d 1167 (11th Cir. 2020). Prior to

the Eleventh Circui tÔs decision, parties in these proceedings traveled under

the preponderance of the evidence standard prescribed under section

120.57(1)(j), and Florida appellate courts applied this standard as well. To

date, no Florida appellate court has applied the clea r and convincing evidence

standard in a proceeding such as this. The Florida Supreme Court has held

that Ñ[g]enerally, state courts are not required to follow the decisions of

intermediate federal appellate courts on questions of federal law.Ò Carnival

Cor p. v. Carlisle, 953 So. 2d 461, 465 (Fla. 2007). The undersigned has

considered this matter under both the preponderance of the evidence and

clear an d convincing evidence standards.

31. A preponderance of the evidence is defined as Ñthe greater weight of

t he evidence,Ò or evidence that Ñmore likely than not tends to prove a certain

proposition.Ò S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC , 139 So. 3d 869,

871 (Fla. 2014).

32. C lear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The

Florida Supreme Court further enunciated the standard:

This intermediate level of proof entails both a

qualitative and quan titative standard. The

evidence must be credible; the memories of the

witnesses must be clear and without confusion; and

the sum total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evide nce requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts in issue. The

evidence must be of such a weight tha t it produces

in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983)). ÑAlthough this standard of proof may be

met where the evidence is in conflict, it seems to preclude evidence that is

ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 989 (Fla.

1st DCA 1991).

33. Medicaid is a cooperative fe deral - state medical assistance program.

See 42 U.S.C. § 1396, et seq. Florida has elected to participate in the program,

and thus must comply with federal Medicaid statutes and regulations. See

Wilder v. Virginia Hosp. AssÔn, 496 U.S. 498 (1990); Public He alth Trust of

Dade C ty . v. Dade C ty . Sch. Bd. , 693 So. 2d 562, 564 (Fla. 3d DCA 1997).

34. The federal Medicaid program requires every participating state to

implement a third - party liability provision that authorizes a state to seek

reimbursement for Medi caid expenditures from third parties when those

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

Stat.; Giraldo, 248 So. 3d at 55. To accomplish this, section 409.910(6)

establishes that AHCA is automatically assigned any rights a Medicaid

recipient has to third - party benefits. Section 409.910(1) states, in part:

It is the intent of the Legislature that Medicaid be

the payor of last resort for medically necessary

goods and services furnished to Medicaid

recipients. All other sou rces 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 Medicaid, 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 paid in full from, and to

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

whether a recipient is made whole or other

creditors paid. Principles of commo n 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 liable third

pa r ty become available at any time, the pu blic

treasury should not bear the burden of medical

assistance to the extent of such resources.

35. In addition, section 409.910(7) authorizes AHCA to recover payments

paid from any third party, the recipient, the provider of the recipientÔs

medical serv ices, or any person who received the third - party benefits.

36. Section 409.910(11)(f) provides a formula to establish the amount

AHCA may recover from a settlement, as follows:

(f) Notwithstanding any provision in this section to

the contrary, in the even t 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

follows:

1. After attorney Ôs 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 b e

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 recipient or

his or her legal representative shall be calculated

at 25 percent of the ju dgment, 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

purposes of this paragraph , Ñmedical coverageÒ

means any benefits under health insurance, a

health maintenance organization, a preferred

provider arrangement, or a prepaid health clinic,

and the portion of benefits designated for medical

payments under coverage for workersÔ

compens ation, personal injury protection, and

casualty.

37. In the instant matter, applying the formula set forth in

section 409.910(11)(f), to the $370,000.00 settlement, results in AHCA being

owed $128,032.84 to satisfy the Medicaid lien. Petitioner, however, asserts

that a lesser amount is owed.

38. Section 409.910(17)(b) provides an administrative procedure for

determining whether a lesser portion of the total recovery should be allocated

as reimbursement for past medical expenses, instead of the amount

calc ulated pursuant to section 409.910(11)(f). Section 409.910(17)(b) provides,

in pertinent part:

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 filed with the

Division of Administrative HearingsÈ. In order to

successfully challenge the amount designated as

recovered medical expenses, the recipient must

prove, by clear and convincing evidence, that the

portion of the total recover y which should be

allocated as past and future medical expense 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 p rovided a lesser

amount of medical assistance than that asserted by

the agency.

39. The formula set forth in section 409.910(11)(f) provides an initial

determination of AHCAÔs recovery for past medical expenses paid on a

Medicaid recipientÔs behalf, and s ection 409.910(17)(b) sets forth an

administrative procedure for adversarial challenge to that recovery. Ñ[W]hen

AHCA has not participated in or approved a settlement, the administrative

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

de termining whether a lesser portion of the total recovery should be allocated

as reimbursement for medical expenses in lieu of the amount calculated by

application of the formula in section 409.910(11)(f).Ò Eady v. Ag. for Health

Care Admin. , 279 So. 3d 124 9, 1255 (Fla. 1st DCA 2019) (quoting Delgado v.

Ag. for Health Care Admin. , 237 So. 2d 432, 435 (Fla. 1st DCA 2018)). To

successfully challenge the amount payable to AHCA, the Medicaid recipient

must prove that a lesser portion of the total recovered shoul d be allocated as

reimbursement for past medical expenses than the amount AHCA has

calculated pursuant to section 409.910(11)(f).

40. In Eady , the First District determined that utilizing the pro rata

allocation methodology for determining the amount of th ird - party recovery to

be allocated to past medical expenses was appropriate and required under

the circumstances. Id. at 1259.

41. Since Eady, Florida courts have consistently held that where

a Medicaid recipient presents unrebutted competent substantial evidence to

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

Medicaid lien as calculated under the formula in section 409.910(11)(f),

it is reversible error for an ALJ to reject the use of such methodology in

determining the amoun t of the Medicaid lien pursuant to

section 409.910(17)(b), unless there is a reasonable basis in the evidentiary

record for doing so. See, e.g., Bryan v. Ag. for Health Care Admin., 291 So. 2d

1033, 1036 (Fla. 1st DCA 2020); Mojica v. Ag. for Health Care Admin., 285

So. 2d 393, 398 (Fla. 1st DCA 2019); Larrigui - Negron v. Ag. For Health Care

Admin. , 280 So. 3d 550 (Fla. 1st DCA 2019).

42. The pro rata allocation methodology has also been consistently applied

in Medicaid third - party reimbursement challenges brought at DOAH under

section 409.910(17)(b), to reduce the amount of AHCAÔs Medicaid lien. See,

e.g., Armando R. Payas, as Guardian Ad Litem for E.R., a Minor, Jennett

Camacho, Individually and on Behalf of E.R., a Minor v. Ag. for Health Care

Admin. , Cas e No. 21 - 0442MTR (Fla. DOAH June 1, 2021); Shirley McBride,

as Personal Representative of the Estate of Robin McBride v. Ag. for Health

Care Admin. , Case No. 20 - 5259MTR (Fla. DOAH Mar. 9, 2021); Gregory

McElveen, through the Personal Representative of his Estate, Daniel Hallup v.

Ag. for Health Care Admin. , Case No. 20 - 4223MTR (Fla. DOAH Feb. 2, 2021);

Misty Mobley and Tavarius Sanders, Individually and on Behalf of Tavarion

Sanders, a Minor v. Ag. for Health Care Admin. , Case No. 20 - 4033MTR (Fla.

DOAH Dec. 21, 2020); Michael Miller v. Ag. for Health Care Admin. , Case

No. 20 - 3511MTR (Fla. DOAH Oct. 19, 2020); Mary Bishop, by and through

Guardian Nicole Milstead v. Ag. for Health Care Admin. , Case No. 20 -

1526MTR (Fla. DOAH Sep. 23, 2020); Amy Lopez, Individu ally and as Parent

and Natural Guardian of A.F., a Minor v. Ag. for Health Care Admin. , Case

No. 20 - 2124MTR (Fla. DOAH Sep. 3, 2020); Valeria Alcala, a Minor, by

Yobany E. Rodriguez - Camacho and Manuel E. Alcala, as Natural Guardians

and Next Friends v. Ag. for Health Care Admin. , Case No. 20 - 0605MTR (Fla.

DOAH Aug. 18, 2020).

43. Petitioner has not elected to pursue the pro rata allocation

methodology utilized by Eady and recent DOAH orders in this proceeding.

Rather, Petitioner requests that the undersigne d allocate 5% of the total

settlement of her underlying lawsuit towards past medical expenses, and

reduce the Medicaid Lien to that amount, which is $18,500.00.

44. The undersigned concludes that there is no competent, substantial

evidence to establish Pe titionerÔs alternative methodology for reducing the

Medicaid lien. The ÑLetter of UnderstandingÒ upon which the requested 5%

reduction is based states that the basis for doing so Ñis simple equity[,]Ò which

the undersigned is precluded from applying in thi s proceeding. See

§ 409.910(1)(f) , Fla. Stat . And Mr. HollandÔs testimony, which was not based

on sufficient facts or data, and which was not specific as to categories of

damages and to a basis for the 5% allocation, also failed to provide

competent, subs tantial evidence for the requested reduction.

45. As explained in Smith v. Agency for Health Care Administration , 24

So. 3d 590 (Fla. 5th DCA 2009), evidence of all medical expenses must be

presented, as AHCA may recover from the entirety of the medical e xpense

portion Ð not just the portion that represents its lien. Further,

section 409.910(17)(b) grants the undersigned the power to find Ñthe portion

of the total recovery which should be allocated as past È medical expenses,Ò

and to limit AHCA to that amou nt. The statute does not authorize a

reduction of the Medicaid lien to the Medicaid - only portion of a recipientÔs

recovery. See also Garcia v. Ag. for Health Care Admin. , Case No. 19 -

2013MTR, FO at 10 (Fla. DOAH Aug. 27, 2019)(considering the full amount

o f all medical expenses in making a determination on past medical expenses).

Accordingly, the undersigned concludes that PetitionerÔs past medical

expenses consist of the amounts provided by Medicaid ($123,931.5 4 ) and

Equian ($15,648.50) , total ing $139,580. 0 4 .

46. Having failed to establish, by either a preponderance of the evidence

or by clear and convincing evidence, that a 5% allocation of the settlement

proceeds of the underlying lawsuit is an appropriate reduction of PetitionerÔs

Medicaid lien, the unde rsigned concludes that AHCA is entitled to payment

of $128,032.84, pursuant to the formula set forth in section 409.910(11)(f).

O RDER

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

O RDERED that the Agency for Health Care Administrat ion is entitled to

payment of $128,032.84 from PetitionerÔs third - party settlement proceeds in

satisfaction of its Medicaid lien.

D ONE A ND O RDERED this 16th day of June, 2021, in Tallahassee, Leon

County, Florida.

S

R OB ERT J. T ELFER III

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 16th day of June, 2021 .

C OPIES F URNISHED :

Michael Bross, Esquire Shena L. Grantham, Esquire

Michael Bross & Bryan Savy, PLLC Agency for Healthcare Administration

Suite 1 Building 3 , Room 3407B

997 South Wickham Road 2727 Mahan Drive

Melbourne, Florida 32904 Tallahassee, Florida 32308

Alexander R. Boler, Esquire Richard J. Shoop, Agency Clerk

Suite 300 Agency for Healthcare Administration

2073 Summit Lake Drive Mail Stop 3

Tallahassee, Florida 32317 2727 Mahan Drive

Tallahassee, Florida 32308

Simone Marstiller, Secretary

Agency for Healthcare Administr ation James D. Varnado, General Counsel

Building 3 Agency for Healthcare Administration

2727 Mahan Drive Mail Stop 3

Tallahassee, Florida 32308 2727 Mahan Drive

Tallahassee, Florida 32308

Thomas M. Hoeler, Esquire

Agency for Healthcare 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

gover ned by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

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

rendition of the 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 otherwise provided by law.