vs. ) CASE NO. 86-4111
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 6, 1987, in Tallahassee, Florida.
For Petitioner: S. Philip Ford, pro se
For Respondent: Augustus D. Aikens, Jr., Esquire General Counsel
On August 26, 1986, the Petitioner, S. Philip Ford, was notified by the Respondent, the Department of Administration, Office of State Employees' Insurance, that he had been reimbursed $77.02 for prescription drugs that he purchased after cancellation of his coverage by the State's health plan. The Petitioner was requested to remit $77.02 to the Respondent. By letter dated August 28, 1966, the Petitioner requested a formal administrative hearing to contest the Respondent's proposed action. On October 20, 1986, the Respondent requested that a Hearing Officer from the Division of Administrative Hearings conduct the formal administrative hearing.
The case was assigned case number 86-4111 and initially assigned to P. Michael Ruff. The case was ultimately transferred to the undersigned.
At the final hearing, the Petitioner testified on his own behalf and submitted Petitioner's exhibits 1-3. The exhibits were accepted into evidence without objection. The Respondent presented the testimony of Ms. Marie Walker and Respondent's exhibits 1-4, which were accepted into evidence without objection.
The parties have timely filed proposed recommended orders which contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order. Additionally, attached to this Recommended Order is an Appendix which indicates where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.
Whether the Petitioner is required to reimburse the Respondent for prescription drugs acquired by the Petitioner through the Prescription Drug Program of the State of Florida Employees Group Health Self Insurance Plan?
The Petitioner was an employee of the State of Florida during the latter part of 1985 and during 1986. His employment with the State began January 27, 1984.
Prior to December 1, 1985, the Petitioner participated in the State of Florida Employees Group Health Self Insurance Plan (hereinafter referred to as the "State Plan").
On October 31, 1985, the Petitioner signed a Change of Information form electing to terminate his participation in the State Plan and to begin participation in a Health Maintenance Organization (hereinafter referred to as an "HMO").
The HMO the Petitioner selected was the Capital Health Plan.
The title of the form the Petitioner signed on October 31, 1985, contained the following:
STATE OF FLORIDA
EMPLOYEES GROUP HEALTH SELF INSURANCE PLAN CHANGE OF INFORMATION
FOR USE ONLY BY A CURRENT EMPLOYEE OF THIS PLAN
[Emphasis added].
Above the Petitioner's signature was the following "employee authorization":
I hereby request the above changes in my coverage and/or insurance information in the State of Florida Employees Group Health Self Insurance Plan....[Emphasis added]
Prior to terminating his coverage under the State Plan, the Petitioner was given a brochure titled "A Comparison of Health Benefit Plans Offered to Employees of the State of Florida" (hereinafter referred to as the "Comparison Brochure"). The brochure was for employees working in North Florida.
The Comparison Brochure indicates there are two general types of health insurance plans available to state employees: HMO Benefit Plans and the State Plan.
The Comparison Brochure also indicates there are four HMO Benefit Plans available. Capital Health Plan, the plan the Petitioner elected on October 31, 1985, is one of the clearly designated HMO Benefit Plans listed in the Comparison Brochure.
The Comparison Brochure provides the following with regard to prescription drugs for Capital Health Plan participants: "$3.00 co-payment at CHP pharmacy."
The Comparison Brochure provides the following with regard to prescription drugs for State Plan participants: "PPC provider not available at this time" if a preferred provider is used and "20 percent co-payment (7)" when a non-preferred provider is used. The reference to "(7)" is a footnote which provides: "Prescription Drug Plan will be implemented by 1-1-86, paying 100 percent after nominal dispensing fee."
The Comparison Brochure contains the following other pertinent information:
Along with the conventional group health self insurance plan administered by Blue Cross/Blue Shield, the State of Florida offers its employees the opportunity to enroll in a different health care arrangement. This arrangement, called a Health Maintenance Organization (HMO), is available to eligible employees who live within a specific geographic area
surrounding the HMO.
The Comparison Brochure contains other information that indicates that the State Plan and the Capital Health Plan HMO are completely different types or methods of obtaining health insurance coverage available to state employees.
Based upon the information contained in the Comparison Brochure, which the Petitioner indicated he read, the Petitioner should have known that he was entitled to health insurance benefits under the Capital Health Plan HMO as of December 1, 1985, and that he was not entitled to any health insurance benefits under the State Plan.
Sometime after December 20, 1985, the Petitioner received a letter from the Department of Administration which provided in pertinent part:
Dear Participant:
We are pleased to announce the new Prescription Drug Program. Effective January 1, 1986, coverage for prescription drugs under the State Employees Group Health Self Insurance Plan is provided through a prescription drug program serviced by Paid Prescriptions and National Rx Services, Inc. This program is specifically designed to save
you money when you use a Preferred Provider Organization (PPO) Pharmacy and Mail Service for your prescription drugs. [Emphasis added].
Included with the letter of December 20, 1985, was a "PLASTIC CARD to use at PPO and participating pharmacies" and a "brochure which gives you instruction on using the Program and a detachable patient profile for Mail Service."
The prescription drug card the Petitioner received had "State of Florida Employees Group Health Self insurance Plan" printed on it. It did not contain any reference to Capital Health Plan or any other HMO.
The brochure included with the letter of December 20, 1985, which the Petitioner received had "State of Florida Employees Group Health Self insurance Plan" printed at the top of the front cover of the brochure and elsewhere in the brochure. It did not contain any reference to Capital Health Plan or any other HMO.
The brochure included with the letter of December 20, 1985, provided the following pertinent information:
Coverage for prescription drugs under the State Employees' Group Health Self Insurance Plan is provided through the Prescription Drug Program....
A toll-free telephone number was provided on the prescription drug card and the brochure which the Petitioner was instructed could be used if he had any questions.
The prescription drug card sent to the Petitioner was sent to all state employees participating in the "State Employees Group Health Self Insurance Plan." It was not for use by state employees participating in the Capital Health Plan or other HMO's. The card was erroneously sent to the Petitioner by the Respondent.
Because the Petitioner had terminated his coverage under the State Plan and elected to participate in an HMO effective December 1, 1985, he was not entitled to use the prescription drug card which he received from the Respondent.
In order for the Respondent to have the prescription drug cards ready to be mailed to participants in the State Plan before January 1, 1986, the Respondent used information concerning participants prior to December 1, 1985. Evidently no effort was made by the Respondent to insure that participants who left the State Plan during the end of 1985 did not receive a prescription drug card.
The Respondent did send a memorandum dated December 20, 1985, to Personnel Officers and Insurance Coordinators requesting that they attempt to retrieve prescription drug cards from employees who terminated their participation in the State Plan after November 1, 1985. No one retrieved the Petitioner's card.
After receiving his card, the Petitioner spoke to the business manager of the County Public Health Unit where the Petitioner worked for the Department of Health and Rehabilitative Services. The Petitioner asked the business manager whether he could use the card and was told that he did not know but would find out. The business manager later told the Petitioner that he had talked to the district personnel office and been told that the Petitioner could use the card.
On February 26, 1986, and February 27, 1986, the Petitioner used the prescription drug card to purchase prescription drugs in south Florida. The Petitioner talked with a physician at Capital Health Plan by telephone before purchasing the medications and was authorized to receive treatment by other than a Capital Health Plan physician. The State was billed $5.82 for the medications purchased with the card on February 21, 1986 and February 26, 1986.
On March 1, 1986, the Petitioner again used the card to purchase medications. The card was used in Tallahassee, Florida. The State was billed
$63.95 ($55.43 and $8.52) for the medications purchased with the card on March 1, 1986.
The Petitioner did not use the card on any other occasion. The Petitioner testified that he did not use the card because he discovered that it was less costly to acquire the medications he needed from Capital Health Plan. Based upon the evidence presented at the hearing, however, the cost to the Petitioner was the same whether he used the plastic card or Capital Health Plan's pharmacy: $3.00.
On or about March 27, 1986 and April 10, 1986, the Petitioner was informed that he had used the card to obtain medications for which use of the card was not authorized. The Petitioner was requested to return the card and to repay the amount incurred for the medications. The Petitioner did not respond to these requests.
On August 26, 1986, the Petitioner was sent a letter requesting that he repay the cost of the medications he had acquired with the card. Although the Petitioner was requested to remit $77.02, the evidence only proved that
$69.77 of medication was paid for by the State.
On August 28, 1986, the Petitioner returned the prescription drug card he had been given to Andrew Lewis, an employee of the Respondent. The Petitioner has not reimbursed the State for the cost of the medication he received.
The $69.77 of medications paid for by the Respondent which the Petitioner acquired with the prescription drug card provided to him by the Respondent represents a payment on behalf of the Petitioner which he was not entitled to. The card was for use by state employees participating in the State Plan. As of December 1, 1985, the Petitioner was not a participant in this plan.
When considered together, the information provided to the Petitioner should have put the Petitioner on notice as to the type of medical insurance coverage he was generally entitled to receive. In particular, the Petitioner should have known that he was eligible for coverage under the Capital Health Plan, an HMO, and that he was not entitled to coverage under the State Plan as of December 1, 1985.
The Petitioner also should have known that the prescription drug card he received was for use of participants by the State Plan only and not participants of the Capital Health Plan.
The Petitioner's reliance on the statements of the business manager of the County Public Health Unit where he worked was not reasonable in light of the other information which he had been provided about his coverage and the purpose of the prescription drug card he was sent.
The Petitioner is not able to repay the $69.77 owed to the State in a lump sum. The Petitioner can only pay the $69.77 to the Respondent in monthly installments of $10.00 or less.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
The Secretary of Administration is responsible for administering the State's group health insurance program. Section 110.123(5), Florida Statutes (1986 Supp.).
The Petitioner received a prescription drug card which was for use by employees of the State of Florida who participate in the State Plan. The Petitioner was no longer a participant in the State Plan when he received the card or when he used it to acquire medications. The Petitioner's use of the card was not an authorized use of the card.
The Petitioner does not dispute the conclusion that he received benefits through the use of the prescription drug card which he was not entitled to receive. The Petitioner contends that he should not be required to reimburse the Respondent for the medications he erroneously received because of representations made to him by his personnel office. The Petitioner's argument is based upon the doctrine equitable estoppel.
In order to conclude that the Respondent is equitably estopped from requiring reimbursement from the Petitioner, it must be concluded that the following circumstances exist:
There has been a representation by the State of a material fact that is contrary
to a later asserted position;
Reliance by the Petitioner on that representation; and
A change in position by the Respondent detrimental to the Petitioner. See Department
of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981); and Kuge v. Department of Administration,
449 So.2d 389 (Fla. 3rd DCA 1984).
The facts in this case indicate that the Petitioner was told by the business manager of the County Public Health Unit where he worked that he could use the prescription drug card. The written information provided to the Petitioner, however, clearly indicates that the card was not available for use by participants of an HMO. In light of the information provided to the Petitioner at the time he terminated his participation in the State Plan and at
the time he received the card, the Petitioner should have known that he was not entitled to use the card. Any reliance by the Petitioner upon the statements of the business manager were not reasonable. If nothing else, the Petitioner should have made further inquiries. There a person has full knowledge of the facts he cannot in good faith rely upon the words of another which are not consistent with the truth. See Price v. Stratton, 45 Fla. 535 33 So. 644 (1903).
Based upon the foregoing, it is concluded that the Respondent is not estopped from now asserting that the Petitioner received a benefit from the use of the prescription drug card he received which he was not entitled to. Therefore, the Petitioner should be required to reimburse the Respondent for the unauthorized use of the card. The total amount owed to the Respondent by the Petitioner is $69.77.
