21-001654MTR Ray A. Siewert And Rose E. Siewert vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, July 16, 2021.

Summary: Petitioners proved that AHCA's Medicaid lien should be reduced at the same proportion as the amount of the settlement bore to the total value of the damages.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R AY A. S IEWERT AND R OSE E. S IEWERT ,

Petitioner s ,

vs. C ase No. 2 1 - 1654 MTR

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent.

/

F INAL O RDER

Pursuant to notice, a final hearing was held in this case on June 29, 2021 ,

by Zoom c onference , before E. Gary Early, a designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH) .

A PPEARANCES

For Petitioner s : Jason D. Lazarus , Esquire

2420 South Lakemont Avenue , Suite 160

Orlando , Florida 32 814

For Respondent: Alexander R. Boler, Esquire

2073 Summit Lake Drive , Suite 3 3 0

Tallahassee, Florida 32317

S TATEMENT O F T HE I SSUE

The issue to be determined is the amount to be reimbursed to Respondent ,

Agency for Health Care Administration (Respondent or A HCA ) , from

settlement proceeds received from third parties by Petitioners , Ray A.

Siewert and Rose E. Siewert, for medical expenses paid on behalf of

Petitioner, Mr. Siewert .

P RELIMINARY S TATEMENT

On May 21, 2021 , Petitioner s filed a Petition to Determine Amount

Payable to Agency for Health Care Administration in Satisfaction of Medicaid

Lien , by which they challenged AHCA Ôs lien for recovery of medical expenses

paid through AHCAÔs Medicaid program . Through the Petition , and as

specified in the Joint Pre - hearing Stipulation , the amount of AHCAÔs lien is

$ 33,836.09 . The basis for the challenge was the assertion that the application

of section 409.910(17) (b) , Florida Statutes , warranted reimbursement of a

lesser portion of the total third - party settlement proceeds than the amo unt

calculated by AHCA pursuant to the formula established in section

409.910 (11)(f) .

T he final hearing was scheduled for June 29, 2021 , and was held as

scheduled.

The parties filed their Joint Pre - hearing Stipulation in which they

identified stipulated facts for which no further proof would be necessary. The

stipulated facts have been accepted and considered in the preparation of this

Final Order.

At the final hearing, Petitioner s presented the testimony of Jonathan T.

Gilbert , Esquire , who represented Petitioner s in the medical malpractice

action from which the third - party settlement proceeds were obtained , and

T'anjuiming ÑMingÒ Marx, Esquire. Both Mr. Gilbert and M r. Marx were

a ccepted, without objection, as experts in valuation of damages . Petitioners Ô

Exhibits 1 through 4 were received into evidence. AHCA offered no

independen t witnesses or exhibits.

The hearing was not transcribed . The parties agreed to file their proposed

f inal orders within 10 days of the closing of the final hearing. Both parties

timely filed Proposed Final Orders, which have been duly considered in the

preparation of this Final Order.

All citations are to the 20 20 Florida Statutes , except as otherwise

in dicated.

F INDINGS O F F ACT

Stipulated Findings of Fact

1. On October 15, 2017, the Siewerts were involved in a motorcycle versus

automobile crash, which required extensive hospital, skilled nursing,

therapy, and other medical treatment including , but not limited to , a four -

level spinal fusion procedure and rehabilitative care and services for

Mr. Siewert and multiple leg surgeries for Mrs. Siewert , that ultimately led

to an above - the - knee amputation (hereinafter referred to as the Ñauto

claimsÒ).

2. On January 3, 2018, Mr. Siewert was discharged from a rehabilitation

facility to his home, where he began receiving home health nursing,

physician, and therapy services.

3. On January 22, 2018, Mr. Siewert was diagnosed with an abscess near

his surgica l site, which was allegedly not properly addressed in the days that

followed.

4. On January 31, 2018, Mr. Siewert was hospitalized due to worsening

neurological deficits, namely in his lower body, and he was transferred to the

hospital that had performed h is prior spinal surgery.

5. On February 1, 2018, Mr. Siewert had another spinal surgery to

address an abscess compressing on his spinal cord, leading to the decreased

neurological function.

6. The damage done to his spinal cord preoperatively was significant

enough that he has been unable to walk since January 31, 2018 , and remains

bedbound to present.

7. Mr. Siewert has a neurogenic bladder/bowel, wear s diapers, has to be

catheterized multiple times per day , 1 and is unable to ambulate. To date, he

is living with his wife in a single room res idence at a skilled nursing facility

in the Orlando area, where he is expected to remain. 2

8. The Siewerts brought the following claims: negligence claims relating to

the auto claims ; nursing home neglect claims under c hapter 400, Florida

Statutes ; and m edical m alpractice claims under chapter 766, Florida

Statutes , each of which were pursued against several companies/entities,

individuals, and healthcare providers, seeking, in part, co mpensable damages

to the Siewerts for past bills and future economic needs as well as

noneconomic mental pain and suffering and consortium claims for their

injuries and losses.

9. In April 2021, the Siewerts settled one of the medical malpractice

claims fo r a limited confidential amount.

10. The Siewerts have had a health plan with Aetna Better Health of

Florida, which is a Medicaid plan through AHCA, that has retained the

services of Equain relating to the settlement of part of the SiewertsÔ medical

malpra ctice claims (referred to below as ÑAetnaÒ).

11. Aetna was properly notified of the SiewertÔs medical malpractice

claims against those defendants and indicated it had paid benefits related to

the injuries from the incident in the amount of $75,923.82 , as i t relates to the

settlement at issue. Through their counsel, the Siewerts have asked Aetna to

accept a reduced lien amount given the other claims still pending and large

1 The evidence adduced at hearing indicates that Mr. Siewert has now been fitted with a permanent

abdominal suprapubic catheter.

2 Though Mrs. Siewert could manage in an assisted living facility, Mr. Siewert could not. Thus,

Mrs. Siewert has chosen to stay in the skilled nursing facility to be with her husband.

total case value. Nonetheless, Aetna has continued to assert a lien , for the

amount of $75,923.82, against the SiewertsÔ settlement proceeds relating to

the single settlement.

12. Aetna has maintained that it is entitled to application of s ection

409.910Ôs formula to determine the lien amount. Applying the statutory

reduction formula to thi s particular settlement would result in no reduction

of this lien given the amount of the settlement.

13. The Siewerts also have been covered by AHCAÔs fee - for - service

Medicaid program. AHCA has contracted with Health Management Systems

and Conduent to run its recovery program.

14. AHCA was properly notified of the Siewerts Ô medical malpractice

claims against those defendant s . AHCA provided medical assistance benefits

related to the injuries from the incident in the amount of $33,836.09.

Through their couns el, the Siewerts have asked AHCA to accept a reduced

lien amount. AHCA has continued to assert a lien for the amount of

$33,836.09, against the SiewertsÔ settlement proceeds relating to the single

settlement.

15. AHCA has maintained that it is entitled to application of s ection

409.910Ôs formula to determine the lien amount. Applying the statutory

reduction formula to this particular settlement would result in no reduction

of this lien given the amount of the settlement.

16. AHCAÔs $33,836.09 payment and Ae tnaÔs $75,923.82 payment total

$109,759.91, and this amount constitutes Mr. SiewertÔs claim for past

medical expense damages.

17. There remain claims against numerous other defendants which also

relate to the AHCA and Aetna liens at issue, including all re maining

defendants in the auto and medical malpractice claims.

18. Repayment to AHCAÔs Medicaid program is prioritized by law and

contract over Medicaid - managed care plans

Facts Adduced at Hearing

19 . During the pendency of the medical malpractice action, AHCA was

notified of the action. AHCA did not commence a civil action to enforce its

rights under section 409.910 , nor did it intervene or join in the medical

malpractice action against the Defendants. AHCA has not filed a motion to

set aside, void , or otherwise dispute the settlement.

20 . The Medicaid program , through AHCA , spent $33,836.09 on behalf of

Mr. Siewert , all of which represents expenditures paid for past medical

expenses. No portion of the $33,836.09 paid by AHCA through the Medicaid

program on behalf of Mr. Siewert represented expenditures for future

medical expenses. The $33,836.09 in Medicaid funds paid by AHCA is the

maximum amount that may be recovered by AHCA.

21 . The re was no evidence of the tax able costs incurred in securing the

settlement.

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

requires payment to AHCA of the full $ 33,836.09 Medicaid lien asserted by

AHCA, and the full $75,923.82 Medicaid lien asserted by Aetna .

23 . Petitioners have deposited the full Medicaid lien amount in an

interest - bearing account for the benefit of AHCA pending an administrative

determination of AHCAÔs rights, and this constitutes Ñfinal agency actionÒ for

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

24 . There was no suggestion that the monetary figure agreed upon by the

parties represented anything other than a reasonable settlement.

25 . The evidence firmly established that Mr. Siewert incurred economic

damages, consisting of lost future earnings, past medical expenses, and

future medical expenses . Mr. Gilbert and Mr. Marx testified that those

economic damages totaled ro ughly $ 2,000,000 . However, the economic loss

analysis upon which their testi mony was based showed a total of $1,770,775

in future life care needs for Mr. Siewert, reduced to present value . 3 The only

direct evidence of past medical expenses was the $109,759.91 in Medicaid

expenditures. There was no evidence of other economic damage s. Thus, the

evidence established that economic damages total $1,880,534.90.

26 . The total amount of damages for Mr. Siewert was calculated to be

$10,000,000, which was described as a conservative figure based on the

knowledge and experience of Mr. Gilber t and Mr. Marx, and based on an

analysis of representative jury verdicts involving comparable facts and

damages. However, Mr. Gilbert engaged in a more detailed analysis of

Mr. SiewertÔs non - economic damages, which requires review.

27 . Al though comparable jury verdicts suggest that it could be

considerably more , Mr. Gilbert testified that his calculation, though

subjective, would include $3,000,000 in non - economic damages in the past

three years, and an additional $4,000,000 in non - economic damages into th e

future based upon a projected 12 - year life expectancy , for a total amount of

non - economic damages of $7,000,000. That figure was accepted by both of the

testifying experts.

28 . As part of PetitionersÔ calculation of the total value of the claim was

$1,00 0,000 in loss - of - consortium damages incurred by Mrs. Siewert. Although

the loss of consortium technically applies to the loss of the full marital

relationship previously enjoyed by Mrs. S ie wert, who is not the Medicaid

recipient, that value was included as an element of the claim and settlement.

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

$9,880,534.90 , as a full measure of PetitionersÔ combined damages , is a

conservative and ap propriate figure against which to calculate any lesser

3 Respondent objected to the life care plan on the basis of hearsay. H owever, the plan was not being offered

for the truth of the matter asserted, i.e., that Mr. Siewert would be expected to incur $1,770,775 for future

care, but was offered as evidence of the more general value of a claim in litigation . Furthermore, the life

care plan, even if inadmissible, could be used as support of an expert opinion as to cl aim valuation Ðwhen

those underlying facts are of a type relied upon by experts in the subject to support the opinions expressed .Ñ

Charles W. Ehrhardt, Florida Evidence , § 704.1 (2020 Edition). A life care plan is evidence that , for that

purpose, would Ðbe sufficiently trustworthy to make the reliance reasonable .Ñ Id.

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

the Medicaid lien for past medical expenses .

30 . The full value of the settlement is 5.06 percent of the $ 9,880,534.90

value of the claim .

C ONCLUSIONS O F L AW

31 . The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties in this case pursuant to sections 120.569 ,

120.57(1), and 409.910(17) , Florida Statutes.

32 . AHCA is the agency authorized to administer FloridaÔs Medicaid

program. § 409.902, Fla. Stat.

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

S tates that choose to reimburse certain costs of medical treatment for needy

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

optional, o nce a s tate elects to participate in the Medicaid program, it must

comply with federal requirements governing the same. Id.

34 . As a condition for receipt of federal Medicaid funds, s tates are

required to seek reimbursement for medical expenses incurred on behalf of

Medicaid recipients wh o later recover from legally liable third parties . See

42 U.S.C. § 1396a(a)(25) ; § 409.910(4), Fla. Stat. ; Ark. Dep Ô t of Health &

Human Servs. v. Ahlborn , 547 U.S. 268 , 276 (2006).

35 . Consistent with this federal requirement, the Florida Legislature has

enacted section 409.910 , which authorizes and requires the s tate to be

reimbursed for Medicaid funds paid for a recipient Ô s medical care when that

recipient later receives a personal injury judgment , award, or settlement

from a third party. Smith v. Ag. for Health Care Admin . , 24 So. 3d 590

(Fla. 5th DCA 2009).

36 . Section 409.910(1) establishes the primacy of repayment to Medicaid

for medical assistance paid by Medicaid, and provides that:

It is the intent of the Legislature that Medicaid be

the payor of last resort for medically necessary goods

and services furn ished to Medicaid recipients. All

other sources of payment for medical care are

primary to medical assistance provided by Medicaid.

If benefits of a liable third party are discovered or

become available after medical assistance has been

provided by Medicai d, it is the intent of the

Legislature that Medicaid be repaid in full and prior

to any other person, program, or entity. Medicaid is

to be repaid in full from, and to the extent of, any

third - party benefits, regardless of whether a

recipient is made whole or other creditors paid.

Principles of common law and equity as to

assignment, lien, and subrogation are abrogated to

the extent necessary to ensure full recovery by

Medicaid from third - party resources. It is intended

that if the resources of a liable thi rd party become

available at any time, the public treasury should not

bear the burden of medical assistance to the extent

of such resources.

37 . A s a condition of providing Medicaid funds, the state of Florida is

placed in a priority position for recovery of all funds expended, as expressed

in section 409.910(6)(a), which provides that:

[AHCA] is automatically subrogated to any rights

that an applicant, recipient, or legal representative

has to any third - party benefit for the full amount of

medical assistance provided by Medicaid. Recovery

pursuant to the subrogation rights created hereby

shall not be reduced, prorated, or applied to only a

portion of a judgment, award, or settlement, but is

to provide full recovery by [AHCA] from any and all

third - party benefits. Equities of a recipient, his or

her legal representative, a recipientÔs creditors, or

health care providers shall not defeat, reduce, or

prorate recovery by [AHCA] as to its subrogation

rights granted under this paragraph.

38 . The statute creates an automatic lien on any such judgment, award, or

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

Fla. Stat. In addition, section 409.910(7) authorizes AHCA to recover

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

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

benef its.

39 . The statutory formula for calculating the lien is established as one -

half of the settlement proceeds after attorney Ôs fees (calculated at 25 percent

of the judgment, award, or settlement) , and taxable costs are subtracted, up

to the full lien amount. § 409.910(11)(f), Fla. Stat.; see also Ag. for Health

Care Admin. v. Riley , 119 So. 3d 514, 515 n.3 (Fla. 2d DCA 2013).

40 . AHCA is not automatically bound by any allocation of damages set

forth in a settlement between a Medicaid recipient and a third party that

may be contrary to the formulaic amount . § 409.910(13), Fl a. Stat. (ÑNo

action of the recipient shall prejudice the rights of [AHCA] under this section.

No ... Ó settlement agree ment, Ô entered into or consented to by the recipient or

his or her legal representative shall impair [AHCA] Ôs rights.Ò) ; s ee also

§ 409.910(6)(c)7., Fla. Stat. (ÑNo release or satisfaction of any ... settlement

agreement shall be valid or effectual as against a lien created under this

paragraph, unless [AHCA] joins in the release or satisfaction or executes a

release of the lien.Ò).

41 . I n cases such as this , w here AHCA has not participated in or approved

the settlement, the administrative procedure created by section

409.910(17)(b) is the means for determining whether a lesser portion of a

total recovery should be allocated as reimbursement for medical expenses in

lieu of the amount calculated by application of the formula in section

409.910(11)(f). 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 determining whether a les ser 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 1249, 1255 (Fla. 1st DCA

2 019) (quoting Delgado v. Ag. for Health Care Admin. , 237 So. 2d 432, 435

(Fla. 1st DCA 2018)).

42 . Section 409.910 (17) (b) provide s , in pertinent part, that :

A recipient may contest the amount designated as

recovered medical expense damages payable to

[AHCA] 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 [AHCA] or after the date of placing the full

amount of the third - party benefits in the trust

account f or the benefit of [AHCA] pursuant to

paragraph (a). ... In order to successfully challenge

the amount payable to [AHCA] , the recipient must

prove, by clear and convincing evidence, that a lesser

portion of the total recovery should be allocated as

reimburs ement for past and future medical expenses

than the amount calculated by [AHCA] pursuant to

the formula set forth in paragraph (11)(f) or that

Medicaid provided a lesser amount of medical

assistance than that asserted by [AHCA] .

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

challenge the statutory lien is the clear and convincing evidence standard.

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

convincing standard . However, the United States Court of Appe als for the

Eleventh Circuit recently reversed the district courtÔs decision, and, inter

alia , held that the application of the Ñclear and convincing evidenceÒ burden

of proof does not violate federal law. Gallardo v. Dudek , 963 F.3d 1167, 1181

(11th Cir. June 26, 2020). Prior to the Eleventh CircuitÔs decision, Florida

appellate courts applied the preponderance of the evidence standard

prescribed under section 120.57(1)(j). To date, no Florida appellate court has

applied the clear and convincing evidence s tandard in a Medicaid third - party

recovery proceeding . 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 Corp. v. Carl isle ,

953 So. 2d 461, 465 (Fla. 2007). The undersigned has considered this matter

under both the preponderance of the evidence and clear and convincing

evidence standards.

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

the 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).

45 . Clear a nd 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 standar d:

This intermediate level of proof entails both a

qualitative and quantitative 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

co nvince the trier of fact without hesitancy.

Clear and convincing evidence 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 confusi on as to the facts in issue. The

evidence must be of such a weight that 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. , Inc. , 590 So. 2d

98 6 (Fla. 1st DCA 1991).

46 . The U.S. Supreme Court has interpreted the anti - lien provision in

federal Medicaid law as imposing a bar which, pursuant to the Supremacy

Clause, precludes Ñ a state from asserting a lien on the portions of a

settlement not allocated to medical expenses. Ò See, e.g., Mobley v. Ag. for

Health Care Admin., 181 So. 3d 1233, 1235 (Fla. 1st DCA 2015).

47 . U nder preemptive federal law as construed by the Florida Supreme

Court, the state Ô s Medicaid lien may attach only to that portion of a

recipient Ô s settlement recovery attributable to past medical expense damages ,

and section 409.910(17)(b) cannot be applied to allow AHCA to recover from

future medical expense damages. Giraldo v. Ag . for Health Care Admin . ,

248 So . 3d 53, 54 (Fla. 2018) .

48 . E vidence of all past medical expenses must be presented, as AHCA

may recover from the entirety of the past medical expense portion -- not just

the portion that represents its lien. Smith v. Ag. for Health Care Admin. ,

24 So. 3 d 590 (Fla. 5th DCA 2009) ; see also Garcia v. Ag. for Health Care

Admin. , Case No. 19 - 2013MTR, F . O . at ¶ 31 (Fla. DOAH Aug. 27, 2019) ( ÑThe

full amount of all past medical expenses must then be considered, not just the

past medical expenses representing the amount of AHCA Ô s lien.Ò ) . 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 amount. The statute does not authoriz e a

reduction of the Medicaid lien based only on t he AHCA - paid Medicaid portion

of a recipientÔs recovery. Accordingly, the undersigned concludes that

Petitioner Ôs past medical expenses consist of the amounts provided by

Medicaid ($ 33,836.09 ) and Aetna ( $75,923.82 ) . The sum of these benefits

( $109,759.91 ) constitutes the total amount of Petitioner Ôs past medical

expenses .

49 . With regard to the methodology for determining that portion of

settlement proceeds to be allocated to past medical expense s , recent appellate

decisions have accepted a proportional reduction as a valid, albeit

nonexclusive, basis for making the required distribution. As the First District

Court of Appeal explained:

[W]hile not established as the only method, the pro

rata [or proporti onal reduction] approach has been

accepted in other Florida cases where the Medicaid

recipient presents competent, substantial evidence

to support the allocation of a smaller portion of a

settlement for past medical expenses than the

portion claimed by AHC A. See Giraldo v. Agency for

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

Mojica v. Agency for Health Care Admin. , 285 So. 3d

393 (Fla. 1st DCA 2019); Eady v. State , 279 So. 3d

1249 (Fla. 1st DCA 2019). But see Willoughby v.

Agency for Health Care Administration , 212 So. 3d

516 (Fla. 2d DCA 2017) (quoting Smith v. Agency for

Health Care Administration , 24 So. 3d 590, 591 (Fla.

5th DCA 2009)) (explaining that the pro rata

formula is not the Ñ required or sanctioned method to

determine the medical expe nse portion of an overall

settlement amount Ò ).

Ag. for Health Care Admin. v. Rodriguez , 294 So. 3d 441, 444 (Fla. 1st DCA

2020).

50 . I n Bryan v. Agency for Health Care Administration , 291 So. 3d 1033

(Fla. 1st DCA 2020) , the Medicaid recipient settled a medical malpractice

action for $3,000,000, and then initiated an administrative proceeding to

adjust the Medicaid lien, which AHCA asserted should be payable in the full

amount of approximately $380,000. Id. at 1034. At hearing, the recipient

Ñ offered the testimony of two trial attorneys who were both admitted as

experts in the valuation of damages. Ò Id. These witnesses relied upon a life

care plan and an economist Ô s report, which were filed as exhibits, as well as

jury verdicts in similar cases, to support their opinion that Ñ the value of [the

recipient Ô s] damages exceeded $30 million. Ò Id.

51 . The Ñ experts both testified that, us ing the conservative figure

$30 million, the $3 million settlement only represented a 10% recovery, Ò and

that, Ñ based on that fi gure, it would be reasonable to allocate 10% of [the

recipient Ô s ] $38 1,106.28 [ 4 ] claim for past medical expenses - $38,106.28 - from

the settlement to s atisfy AHCAÔs lien. Ò Id. The recipient also Ñ submitted an

affidavit of a former judge, Ò who affirmed tha t the proportional allocation was

a reasonable, rational, and logical Ñ method of calculating the proposed

allocation. Ò Id.

52 . In upholding 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. 9 10(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 u nrebutted competent substantial

evidence that her pro 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 , Eady , and Mo jica . AHCA did

not present any evidence to challenge [the

recipient Ô s] 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.

53 . A questi on arose in the course of the hearing as to the extent to which

Mrs. SiewertÔs damages for loss of consortium, which were part of the claim

and the settlement, should be included in the calculation of any proportional

reduction of the Medicaid lien based o n the percentage of damages recovered

to the value of the claim. Though there is little directly on point, the case of

Agency for Health Care Administration v. Rodriguez , 294 So. 3d 441 (Fla. 1st

DCA 2020) , is instructive. In that case, the court found that Mr. Rodriguez

Ñ had proved the value of his civil case ,Ò and that his case included

noneconomic damages , including loss of consortium. Id. at 443.

4 The actual number was, as set forth at other places in the Bryan opinion, $381,062.84,

which makes the 10 percent calculation correct.

54 . Loss of consortium is a derivative right that inures t o the spouse of an

injured person. As established in the seminal case of Gates v. Foley , 247 So.

2d 40 (Fla. 1971), in which an action for loss of consortium by the wife of an

injured plaintiff was first recognized, the c ourt held that:

The rule that we now recognize is that the wife of a

husband injured as a proximate result of the

negligence of another shall have a right of action

against that same person for her loss of consortium.

We further hold that her right of action is a

derivative right and she may recover only if her

husband has a cause of action against the same

defendant.

Id. at 45. The Gates court further explained Ñ that any loss to the wife of her

husband's material support is fully compensated by any award to him for

impairment of his los t earning and that the wife is entitled to recover only for

loss of consortium. .. . Ò Id.

55 . The recognition by the Rodriguez court that loss of consortium

damages are to be included as evidence of the total value of a claim , despite

the fact that they do not inure to the Medicaid recipient , but rather to the

spouse , is persuasive authority that they are to be considered in the

calculation of a proportional reduction of the Medicaid lien .

56 . In this case, as in Bryan , two expert trial attorneys gave unr ebutted

testimony to establish a conservative (and uncontested) appraisal of

PetitionersÔ damages . The combined settlement for all of Mr. Si e wertÔs

economic and noneconomic damages represented 5.06 percent of the full ,

supported, and very conservative, $9,880,534.90 value of his damages. A s in

Bryan , the experts opined that a proportional reduction was the proper

method of determining the portion of the recipient Ô s recovery which should be

allocated as past medical expenses. Their testimony, which was un rebutted,

is credited.

57 . The undersigned accepts the premise that the proportional reduction

methodology, when established, as here, by unrebutted, competent

substantial evidence, provides a valid formula for determining the portion of

the recipient Ô s recovery which should be allocated as past medical expense

damages.

58 . Applying the more stringent of the evidentiary standard s, Petitioners

proved their case by clear and convincing evidence.

Summary

59 . Petitioner s have established that a lesser portion of the total recovery

than the amount calculated pursuant to the formula in section 409.910(11)(f)

should be reimbursed to AHCA as the proportionate share of the settlement

proceeds fairly attributable to expenditures that were paid by AHCA for

Pet itioners Ô past medical expenses.

60 . The total value of Petitioner s Ô damages is , conservatively,

$ 9,880,534.90 .

61 . T he amount recovered by Petitioner s in damages is 5.06 percent of the

value of the total claim.

62 . The appropriate amount from which the proportionate share of the

Medicaid lien reimbursement should be calculated is the total amount of past

medical expenses paid on behalf of Mr. Siewert by AHCA and Aetna

Healthcare in the amount of $ 109,759.91 .

63 . Thus, since 5.06 percent of $ 109,759.91 is $ 5,553.85 , that figure

represents the appropriate proportionate share of the total recovery that

should be allocated to the Medicaid lien .

C ONCLUSION

Upon consideration of the above F indings of F act and C onclusions of L aw,

it is , hereby ,

O RDERED that :

The Agency for Health Care Administration is entitled to $ 5,553.85 in

satisfaction of its Medicaid lien.

D ONE A ND O RDERED this 16th day of July , 20 2 1 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

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 July , 20 2 1 .

C OPIES F URNISHED :

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

Suite 300 Agency for Health Care Administration

2073 Summit Lake Drive Building 3, Room 3407B

Tallahassee, Florida 32317 2727 Mahan Drive

Tallahassee, Florida 32308

Jason Dean Lazarus, Esquire

Special Needs Law Firm Thomas M. Hoeler, Esquire

Suite 160 Agency for Health Care Administration

2420 South Lakemont Avenue 2727 Mahan Drive, Mail Stop 3

Orlando, Florida 32814 Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk James D. Varnado, General Counsel

Agency for Health Care Administ ration Agency for Heal th Care Administration

2727 Mahan Drive, Mail Stop 3 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 Tallahassee, Florida 32308

Simone Marstiller, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Tallahassee, Florida 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 proceedings are

commenced by filing the o riginal 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 District Court of

Appeal in the appellate district where the agency maintains its headquarters

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