STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKLIN BROGDON, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2183

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 31, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioner: Ben R. Patterson, Esquire

1215 Thomasville Road

Tallahassee, Florida 32315

For Respondent: Daniel C. Brown, Esquire

435 Carlton Building Tallahassee, Florida 32301

This case arises because of a dispute about petitioner's liability for certain insurance premiums. The hearing officer eliminated, sua sponte, any issue as to the validity of any of respondent's rules without prejudice to the filing of proceedings pursuant to Section 120.56, Florida Statutes (1981). By the parties' prehearing stipulation, and by further stipulations at hearing, the dispute has been narrowed to the following

ISSUES

Whether petitioner owes respondent premiums on account of insurance coverage (Family I) under the State Employees Group Health Insurance Program from March 1, 1979, to August 31, 1981? If so, whether petitioner is obligated to pay the underpayment as a condition of continued insurance coverage?

FINDINGS OF FACT

1. Until December 6, 1978, petitioner, who has worked as a forest ranger for Florida's Department of Agriculture and Consumer Services since 1967 or 1968, was married to Betty R. Brogdon, the mother of his two children. Betty Brogdon was employed by Florida's Department of Health and Rehabilitative Services at the time of the dissolution of her marriage to petitioner. A provision of the dissolution decree required petitioner to maintain health insurance in effect for the children.

2. During the marriage, in April of 1978, petitioner applied for, and received Family I insurance in the Florida Employees Group Health Self Insurance Plan, Respondent's Exhibit No. 1, continuing the coverage under a predecessor policy. Petitioner paid a premium for the Family I coverage reduced by certain employer contributions, after formally bringing to his supervisor's attention the fact that Betty R. Brogdon was also a state employee, and signing forms to that effect. Before August 1, 1979, the employer contributed 75 percent of the amount of the premium for Individual I coverage for each employee. From August 1, 1979, until August 1, 1980, the employer contributed, in addition, 25 percent of the family premium. On and after August 1, 1980, the employer contribution for each employee increased to 75 percent of the amount of the premium for Individual I coverage plus 50 percent of the family premium. Since this amount exceeds the total premium for Family I, families with this coverage in which both spouses work for state government have paid no insurance premium for Family I coverage since April 1, 1980.

   
   

3. After the marriage ended, Betty Brogdon applied, on February 6, 1979, for Individual I health insurance, by submitting a form through the personnel office at the Sunland Center in Marianna, where she was employed. Since she had been a beneficiary under the family policy that her husband kept in force while they were married, her application reflected no change in that policy. When it reached the Bureau of Insurance of the Department of Administration, it was indistinguishable from any other new application by an employee who had not signed up when beginning work. After medical approval on May 7, 1979, she received Individual I coverage for herself only.

   
   

4. Petitioner works with four other forest rangers and a supervisor at a site seven miles west of Marianna. There is no "personnel technician" stationed there and none visits. He told his supervisor of the divorce and, on March 2, 1979, filled out a "personnel action request" form furnished by a district office of the Department of Agriculture and Consumer Services in Bonifay, Florida, indicating "[m]arital and dependent change," which reached the Director of the Division of Forestry on March 9, 1979. Like other forms of its kind, this form never reached the Bureau of Insurance of the Department of Administration. The Bureau of Insurance did receive, however, on August 13, 1981, a "change of information" form reporting the Brogdons' dissolution of marriage on December 6, 1978. Respondent's Exhibit No. 3. Effective the following month, on advice of the Bureau of Insurance, the Department of Agriculture and Consumer Services subtracted from petitioner's paychecks the same insurance premium other employees not married to state employees paid for Family I coverage. The Bureau of Insurance lacks authority to make such deductions itself.

   
   

5. Between March of 1980 and December 31, 1982, the only claims submitted under the policy were for petitioner himself. But for the $100.00 deductible, these claims were paid.

   
   

6. The difference between what a state employee married to another state employee paid for Family I insurance coverage between July 1, 1979, and August 31, 1981, and what a state employee not married to another state employee paid for the same coverage amounts to $864.42.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner concedes that he owes Family I premiums for January and February of 1979, after the dissolution but before he executed the "personnel

   action request" giving his employer, the Division of Forestry of the Department of Agriculture and Consumer Services, formal notice of the dissolution of his marriage. But he contends that the Bureau of Insurance should be estopped from collecting premiums for the remainder of 1979, 1980 and first eight months of 1981, because they were not deducted from his paychecks at the time, notwithstanding that petitioner never applied for any change in coverage. See Rule 22K-1.16(6), Florida Administrative Code.

   
   

8. There is no question that petitioner has enjoyed Family I coverage during the whole period in dispute. That he, rather than one of his children, happened to need medical care for which he was reimbursed is immaterial. To state petitioner's contention that this circumstance somehow transmuted the family policy into an individual policy, even though he never applied for an individual policy, is to refute it. Even if nobody in the family had needed reimbursable medical care, the policy was in force.

   
   

9. Nor is there any occasion here for application of the doctrine of estoppel. Even if the Department of Agriculture and Consumer Services can be deemed respondent's agent, see Rule 22K-1.18(1) ("agency personnel office"), petitioner did not submit the change of information form until August of 1981 and petitioner has suffered no detriment of any kind. He has enjoyed a windfall which he is now asked to return, and without interest. He bought no other insurance policy, as far as the evidence shows, nor took any other step in reliance on the fact that his insurance premiums were not being deducted from his paycheck regularly. Having made repeated claims for benefits under the policy, petitioner cannot now be heard to say that paying the premiums would be inequitable.

   
   

10. There remains the question of the proper interpretation of Rule 22K- 1.20, Florida Administrative Code, which provides, in part:

    
    

    1. If the underpayment of premium is not paid within ninety (90) calendar days after the date of the notification or prior to date of termination of employment, whichever is earlier, the employee's or surviving spouse's coverage shall be cancelled. Such underpayment of the employee shall then be, through authorized payroll certification correction, deducted from any salary payment due the employee.

    2. The employee's agency will verify the amount of underpayment according to payroll records and attempt to secure the employee's consent to a method of repayment. If a method of repayment cannot be agreed on, the agency will certify the amount of the underpayment pursuant to Section 22K-1.201 and send the certificate to the Department of Administration. The employee may contest the amount of the underpayment by submitting to the Department a request for a proceeding pursuant to Section 120.57, Florida Statutes, provided such request is received by the Department by the time the agency's certificate is received by the Department.

At issue between the parties is the question when the 90 day grace period described in Rule 22K-1.201(5), Florida Administrative Code, should begin, in the event of a dispute as to the amount of an underpayment. In order that an affected person not have to run the risk of forfeiting his insurance coverage in order to avail himself of "a proceeding pursuant to Section 120.57, Florida Statutes," Rule 22K-1.20(6), Florida Administrative Code, a right to which he is entitled both under respondent's rules and the Administrative Procedure Act, the

90 days should run from the date proceedings pursuant to Section 120.57, Florida Statutes (1981) culminate in a final order resolving the amount of underpayment.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That respondent direct petitioner to pay the sum of eight hundred sixty-four dollars and forty two cents ($864.42) within ninety (90) days of entry of final order.

   
   

2. If petitioner fails to make timely payment, that respondent cancel his Family I State Employees Group Health Insurance Program policy.

DONE and ENTERED this 11th day of May, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1983.

COPIES FURNISHED:

Ben R. Patterson, Esquire 1215 Thomasville Road

Tallahassee, Florida 32315

Daniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Nevin G. Smith, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 82-002183

Orders for Case No: 82-002183