Opinion
No. V88-40429.
Decided October 24, 1989.
Dortha J. Sanchez, for the claimant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
By an order journalized on October 7, 1988, I determined that the applicant, Gail Helman, qualified as a claimant for an award of reparations. In the opinion which accompanied that order, the single commissioner found, contrary to the Attorney General's findings, that because the service provider would not accept Medicaid the claimant did not have a collateral source which would pay the allowable expense. Therefore, the single commissioner granted an award of $792.50. Thereafter, on November 4, 1988, the single commissioner granted the Attorney General's October 19, 1988 motion to reopen and reconsider the claim. The November 4, 1988 order required that the Attorney General file an amended finding of fact and recommendation on or before December 5, 1988. On February 17, 1989, the single commissioner vacated the October 7, 1988 order, which granted an award of $792.50, and adopted the Attorney General's November 29, 1988 amended recommendation which reiterated the Attorney General's August 10, 1988 recommendation to deny pursuant to R.C. 2743.60(D).
On April 19, 1989, the claimant filed an objection and notice of appeal and a supplemental reparations application. Both of those documents reiterated the claim for expense incurred for the services of Dr. Deborah A. Wong. On May 16, 1989, a panel of commissioners ruled that the April 19, 1989 objection and notice of appeal should be construed as a supplemental filing.
After careful review of the April 19, 1989 supplemental reparations application, the June 1, 1989 supplemental finding of fact and recommendation of the Attorney General, documents and evidence contained in the claim file, and the response of the claimant, I make the following determination.
As a direct and proximate result of the criminally injurious conduct which was perpetrated upon the claimant's then six-year-old daughter, the claimant has incurred counseling expense in the amount of $1,580. The service provider does not accept Medicaid, and Medicaid has not paid the counseling expense. Thus, there is no readily available collateral source and the service provider's policy of not accepting Medicaid in instances where criminal litigation may be involved cannot be attributed to the claimant's unreasonable failure to present a timely claim. Therefore, I find that the claimant has incurred unreimbursed allowable expense in the amount of $1,580 and an award in that amount shall be granted.
R.C. 2743.60(D) states:
"(D) A single commissioner or a panel of commissioners shall reduce an award of reparations or deny a claim for an award of reparations that is otherwise payable to a claimant to the extent that the economic loss upon which the claim is based is recouped from other persons, including collateral sources. If an award is reduced or a claim is denied because of the expected recoupment of all or part of the economic loss of the claimant from a collateral source, the amount of the award or the denial of the claim shall be conditioned upon the claimant's economic loss being recouped by the collateral source. If the award or denial is conditioned upon the recoupment of the claimant's economic loss from a collateral source and it is determined that the claimant did not unreasonably fail to present a timely claim to the collateral source and will not receive all or part of the expected recoupment, the claim may be reopened and an award may be made in an amount equal to the amount of expected recoupment that it is determined the claimant will not receive from the collateral source." (Emphasis added.)
In the Attorney General's November 29, 1988 finding of fact and recommendation, which this court relied upon to vacate the October 7, 1988 award and to deny the claim, the Attorney General cited Ohio Adm. Code 5101:3-1-131 to support the proposition that the service provider may not bill the recipient for services rendered except in a specific situation which, according to the Attorney General, does not exist in the instant claim. Thereafter, in the June 1, 1989 supplemental finding of fact and recommendation the Attorney General stated that the expenses claimed (in the April 19, 1989 supplemental application) were addressed in the Attorney General's August 10, 1988 and November 29, 1988 findings of fact and recommendations. Thus, on June 1, 1989, the Attorney General reiterated the prior recommendations to deny, pursuant to R.C. 2743.60(D), because the expenses would have been paid had they been submitted to Medicaid.
The court finds that the specific situation, in which the service provider may bill the recipient for services rendered, does exist in this claim. Ohio Adm. Code 5101:3-1-131(B) provides:
"5101:3-1-131 Medicaid recipient liability
"* * *
"(B) The provider may only bill the recipient for services not covered by the medicaid program (including any service requiring prior authorization which has been denied by the department) if the recipient is aware of his liability and still chooses to have the service(s) rendered. In such instances, the provider must advise the recipient of the recipient's liability prior to rendering the service(s)."
Under the foregoing provisions, a service provider may bill a Medicaid recipient if the recipient is aware of one's liability and still chooses to have the services rendered, provided further, that the service provider advises the recipient of the recipient's liability prior to rendering the service(s).
In this claim, the initial service was provided on February 11, 1988. On June 24, 1987, Deborah A. Wong, Ph.D., the service provider, wrote a letter to the claimant wherein she stated:
"While we submitted the first appointment for each of you to Medicaid for payment upon the advice of Shirley Utz of the Victim's Assistance Program, our usual policy is not to accept Medicaid for sexual abuse cases which may lead to a legal testimony. Therefore, we have not accepted Medicaid for any other appointments."
Thus, the service provider did advise the claimant of her liability prior to rendering the service and the service provider's act of billing the claimant was not in contravention of the provisions of Ohio Adm. Code 5101:3-1-131.
Having found that the service provider's act of billing the recipient was not prohibited, the court will now review the applicable provisions of R.C. 2743.60(D). Under that section of Ohio's Victims of Crime Act, if the denial is conditioned upon the expected recoupment of the claimant's economic loss from a collateral source and it is determined that the claimant did not unreasonably fail to present a timely claim to the collateral source and will not receive all or part of the expected recoupment, the claim may be reopened and an award may be made. Here, the failure to present a claim to Medicaid is attributable to the service provider's policy of not accepting Medicaid for sexual abuse cases which may lead to legal testimony. Thus, the failure to present a claim is not attributable to the claimant's unreasonable failure to present a claim. Further, a September 30, 1988 memo from Attorney General Investigator Berris indicates that the claimant will not receive the expected recoupment.
Based on the foregoing, I find that the R.C. 2743.60(D) clause which provides for reopening a claim and making an award is applicable. The evidence indicates that, as of November 16, 1988, the claimant has incurred unreimbursed allowable expense in the amount of $1,580. Therefore, the claimant is granted an award of $1,580. The $360 difference between the $1,940 claimed by the claimant and the amount of this award is attributable to the fact that the receipts for services rendered total $1,580.
The applicant filed a statement of indigency and the application for reparations was accepted without payment of the filing fee. Pursuant to R.C. 2743.57(B), the applicant's award must be reduced by the filing fee amount of $7.50.
Supplemental Findings of Fact
1. By an order journalized on October 7, 1988, I determined the applicant qualified as a claimant for an award of reparations.
2. On June 24, 1987, the service provider, Deborah Wong, Ph.D., wrote the claimant a letter explaining the service provider's policy of not accepting Medicaid in sexual abuse cases.
3. On September 30, 1988, Investigator Berris ascertained that the expenses had not been submitted to or paid by Medicaid.
4. As of November 16, 1988, the claimant has incurred counseling expense in the amount of $1,580.
Conclusions of Law
The applicant has suffered "net economic loss," as defined in R.C. 2743.51(E), for the period from February 11, 1988 through November 16, 1988, in the amount of $1,580, consisting entirely of "allowable expense," as defined in R.C. 2743.51(F). The claimant is granted an award in the amount of $1,572.50 because the $7.50 filing fee must be recouped pursuant to R.C. 2743.57(B).
Order
1. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency for payment of the award in the amount of $1,572.50, in a lump sum.
2. The warrant issued in payment of this judgment to the claimant shall be sent by the Director of Budget and Management to the claimant at the address certified to the Director by the Clerk of this court.
3. This order is entered without prejudice to the claimant's right to file a supplemental reparations application pursuant to R.C. 2743.68 if the claimant incurs economic loss not considered in this determination and not reimbursed from other persons, including collateral sources.
4. Costs are assumed by the reparations fund.
So ordered.