         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-828
                  _____________________________

AMMAR AL BATHA, as Personal
Representative of the Estate of
Abdel-Kader Al Batha, and
SHAHIRA ALSHAMI, individually,

    Appellants,

    v.

STATE OF FLORIDA, AGENCY FOR
HEALTH CARE ADMINISTRATION,

    Appellee.
                  _____________________________


On appeal from an order of the Division of Administrative
Hearings.
W. David Watkins, Judge.

                        January 14, 2019


ROBERTS, J.

     During oral arguments, the parties conceded that this appeal
involves the very narrow question of whether a legal
representative qualifies as “recipient” in the 2016 version of
section 409.910(17)(b), Florida Statutes. Because we answer the
question affirmatively, we reverse the administrative law judge’s
(ALJ) dismissal of the personal representative’s petition with
prejudice.
     Prior to his death, the decedent was involved in a car accident
that left him with life threatening injuries. As a result of those
injuries, the decedent received extensive medical care that was
paid by Florida’s Medicaid program. Florida’s Medicaid program
is administered by the Agency for Health Care Administration
(AHCA). See § 409.902(1), Fla. Stat. (2016). When a person
receives Medicaid benefits for a covered injury, AHCA has an
automatic lien against any claim in which a third party is liable
for the amount of medical assistance it provided. § 409.910(6)(c).

     Believing that the other party caused the decedent’s death,
the decedent’s personal representative (PR) and his spouse
initiated a wrongful death action. The PR and decedent’s spouse
ultimately entered into a confidential settlement with the other
party. After settling the wrongful death action, the PR and the
decedent’s spouse filed a petition with the Division of
Administrative Hearings to contest the amount of AHCA’s
Medicaid lien pursuant to section 409.910(17)(b). In response to
the petition, AHCA filed a motion to dismiss alleging that the PR
and the decedent’s spouse could not challenge the lien because they
were not “recipients.” The ALJ agreed.

     We review administrative legal conclusions de novo.
Brownsville Manor, LP v. Redding Dev. Partners, LLC, 224 So. 3d
891, 894 (Fla. 1st DCA 2017). Section 409.910(17)(b) states that
only a “recipient” may contest AHCA’s Medicaid lien. The term
“recipient” is defined in section 409.901(19), Florida Statutes
(2016), and includes a person who received medical assistance
under the Florida Medicaid program for the purposes of section
409.910. Even though a person dies, his right to an existing cause
of action does not die with him. See § 46.021, Fla. Stat. (2016);
Levy v. Baptist Hosp. of Miami, Inc., 210 So. 2d 730, 730 (Fla. 3d
DCA 1968) (the intent of the statute is to preserve an existing
action rather than create a new one). Therefore, theoretically a
deceased person could file a petition to challenge AHCA’s lien if he
could file a petition. Under Florida law, the proper person to file a
cause of action on behalf of a deceased person is the personal
representative. See § 733.612(20), Fla. Stat. (2016); Fla. R. Civ. P.
1.210(a). Since a personal representative is the person authorized
to prosecute a deceased person’s claims, then a personal


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representative qualifies as a “recipient” providing the deceased
person qualifies as a “recipient.”

     The ALJ found that the decedent received medical care
related to his injury that was paid by Florida’s Medicaid program.
Therefore, the decedent qualified as a “recipient.” Because the
decedent qualified as a “recipient,” his PR qualified as a
“recipient.” Therefore, the ALJ erred when he concluded otherwise
and dismissed the PR’s complaint with prejudice. Since the
decedent’s wife was not the decedent’s personal representative nor
the person who received medical assistance from Florida’s
Medicaid program, she does not qualify as a “recipient.” The ALJ
did not err in dismissing her petition. We leave all other questions
for another day.

    AFFIRMED in part, REVERSED in part, and REMANDED.

B.L. THOMAS, C.J., concurs; OSTERHAUS, J., dissents with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

OSTERHAUS J., dissenting.

    Because Mr. Al Batha is deceased, and none of the appellants
are Medicaid “recipients” within the meaning of chapter 409, I
disagree that they may contest the calculation of medical expenses
payable to the agency under § 409.910(17)(b), Florida Statutes
(2016).

     The text of § 409.910(17)(b) clearly limits who may contest
§ 409.910(11)(f)-calculated amounts: “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).” § 409.910(17)(b), Fla. Stat. (2016) (emphasis added).
“Recipient” is specifically defined and distinguished in the statute
from representatives of a recipient and others. The statute defines

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“recipient” to mean “an individual [who is determined] eligible,
pursuant to federal and state law, to receive medical assistance
and related services for which the agency may make payments
under the Medicaid program.” § 409.901(19), Fla. Stat. (2016). It
also distinguishes recipients from legal representatives of a
recipient in various places. Section 409.910(11)(f), for instance,
speaks of the Medicaid recovery formula related to third-party tort
actions “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.” § 409.910(11)(f), Fla. Stat. (2016) (emphasis added.).
This statute separately identifies judgments received by party
recipients and party legal representatives of a recipient. Later in §
409.910(17)(a), the statute again distinguishes a recipient from a
recipient’s representative stating:

    [a] recipient or his or her legal representative or any
    person representing, or acting as agent for, a recipient or
    the recipient’s legal representative, who has notice . . . who
    receives any third-party benefit or proceeds for a covered
    illness or injury, must . . . pay the agency the full amount
    of the third-party benefits, but not more than the total
    medical assistance provided by Medicaid, or place the full
    amount of the third-party benefits in an interest-bearing
    trust account for the benefit of the agency pending an
    administrative determination of the agency’s right to the
    benefits under this subsection.

§ 409.910(17)(b), Fla. Stat. (emphasis added).

     Only in the next paragraph, § 409.910(17)(b), do we see the
Legislature addressing “a recipient” alone, without also referring
to a recipient’s representative. This text provides for only “[a]
recipient” to contest the amount designated by the formula
specified in § 409.910(11)(f). Different from companion paragraphs
(11)(f) and (17)(a), paragraph (17)(b) drops any reference to a
recipient’s representative. It says nothing of allowing a
representative to initiate a contest, but only permits a “recipient”
to do so. For this reason, I agree with the decision of the
administrative law judge and with the other cases that construe
the statute to limit protection from Medicaid liens to only living
Medicaid recipients. See, e.g., Goheagan v. Perkins, 197 So. 3d 112

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(Fla. 4th DCA 2016); Estate of Hernandez v. Agency for Health Care
Admin., 190 So. 3d 139 (Fla. 3d DCA 2016).

     Because the statute’s plain language is dispositive, making
clear that non-recipients—personal representatives and the like—
do not have the same opportunity as a recipient to contest the
results of the amount designated under paragraph (11)(f)’s
formula, I would affirm.

                 _____________________________

Floyd B. Faglie of Staunton & Faglie, PL, Monticello, for
Appellants.

Ashley Brooke Moody, Attorney General, Jonathan A. Glogau and
Elizabeth Teagan, Assistant Attorneys General, Tallahassee;
Tracy Cooper George and Stefan Grow, Agency for Health Care
Administration, Tallahassee, for Appellee.




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