STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OWEN SELLERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1349

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter on June 23, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Mr. Owen Sellers

1874 Woodleigh Drive West Jacksonville, Florida 32211

For Respondent: Daniel C. Brown, Esquire

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

ISSUES AND BACKGROUND

This case concerns the issue of whether the Petitioner should be required to pay back premiums for chiropractic coverage under his family health insurance with the State of Florida Employees Group Health Self Insurance Plan for the period August, 1981, to December, 1982. At the formal hearing, the Petitioner testified on his own behalf and the Respondent called one witness, Ms. Barbara Power. Petitioner had marked for identification eight exhibits. Exhibits 1 through 5 and Exhibit 7 were admitted and Exhibit 6 was withdrawn. Petitioner's Exhibit No. 8 was a copy of Rule 22K-1.20, Florida Administrative Code, and it was marked for identification only. The Respondent had marked for identification 10 exhibits. Respondent offered and had admitted Respondent's Exhibit Nos. 2, 3, 7, 8, 9, and 10.

Both the Petitioner and Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. The proposed findings of fact and conclusions of law were considered by the Hearing Officer and to the extent that those proposed findings of fact and conclusions of law are inconsistent with the facts contained herein, they were considered to be not supported by the evidence or were rejected as being unnecessary to the disposition of this cause.

FINDINGS OF FACT

1. In April, 1978, the Petitioner, Owen Sellers, enrolled in the State of Florida Employees Group Health Self Insurance Plan (hereafter referred to as the Plan) . At the time of his enrollment, the Petitioner elected coverage for himself and his eligible dependents, including coverage for chiropractic services.

   
   

2. Under the Plan, a portion of the premium for the health insurance coverage is paid by the state agency who employs the individual and the remaining portion is paid by the employee through payroll deduction. In approximately November, 1980, the Petitioner'S spouse also became a full time state employee entitled to the health insurance benefit. As a result of the entitlement of both family members, the state began paying the entire cost of the Plan, except for chiropractic coverage. In order to obtain chiropractic coverage, an employee in 1981 and 1982 was required to pay an additional premium for such coverage.

   
   

3. From August, 1981, to December 1, 1982, the Petitioner and his family were covered by the Plan including chiropractic coverage. On or about November 4, 1982, the Petitioner, Owen Sellers, submitted a Change of Information form dropping chiropractic coverage. This change became effective December 1, 1982. At no time prior to this had the Petitioner requested such a change.

   
   

4. Because of an error on the part of the employing agency, the premium for chiropractic coverage was not deducted from Mr. Sellers' pay from August, 1981, through October, 1982. The total amount of premiums due for that period for chiropractic coverage is $92.20.

   
   

5. The error was discovered in November, 1982, and at that time, the Petitioner was notified of the underpayment. Petitioner refused to pay the

   $92.20 and requested an administrative hearing.

   
   

6. During the time period August, 1981, through October, 1982, the Petitioner did not file a claim for any benefits under the chiropractic coverage. However, claims were submitted for non-chiropractic medical treatment received by the Petitioner or other members of his family.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

   
   

8. In the instant case, the Petitioner requested and received chiropractic coverage for the period August, 1981, to December 1, 1982. Although the error which resulted in the failure of the Petitioner's employer to deduct the premium for the chiropractic coverage was not due to any act on the part of the Petitioner, there have been no facts presented which establish an occasion for the application of the doctrine of estoppel. See Franklin Brogdon v. Department of Administration, D.O.A.H. Case No. 82-2183 (Recommended Order filed May 11, 1983, and adopted by Final Order June 21, 1983). The Petitioner has established no legal grounds as to why the premiums should not be paid.

   
   

9. The Petitioner, having received the coverage for which he contracted, should now pay the requisite premium for that coverage. The amount due and owing by Petitioner to the State of Florida Employees Group Health Self Insurance Plan is $92.20.

10. Rule 22K-1.20, Florida Administrative Code, 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.

Clearly, upon failure of the Petitioner to pay the amount of underpayment within the 90-day period, the coverage under the Plan may be cancelled. The 90-day grace period begins to run from the date a final order is entered in these proceedings held pursuant to Section 120.57, Florida Statutes (1981).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That Respondent enter a Final Order directing the Petitioner to pay the sum of ninety-two dollars and twenty cents ($92.20) within ninety (90) days of entry of the Final Order.

   
   

2. In the event Petitioner fails to make timely payment, that Respondent cancel his coverage under the State of Florida Employees Group Health Self Insurance Plan

DONE and ENTERED this 3rd day of August, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 3rd day of August, 1983.

COPIES FURNISHED:

Mr. Owen Sellers

1874 Woodleigh Drive West Jacksonville, Florida 32211

Daniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Mr. Nevin G. Smith Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 83-001349

Orders for Case No: 83-001349