STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS P. WARREN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1452

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled cause on May 12, 1988, in Deland, Florida. The issues for determination are: (a) Whether the Petition For Formal Proceeding should be remanded to the Respondent for disposition due to its untimeliness or, in the alternative, be dismissed due to its untimeliness and; (b) Whether the Respondent is estopped from denying coverage to the Petitioner under the State of Florida Employees Group Health Self Insurance Plan for the hospital costs incurred by Petitioner when he was hospitalized for surgery to reverse a previous vasectomy.

APPEARANCES

For Petitioner: Lester A. Lewis, Esquire

COBLE, BARKIN, ROTHERT, GORDON MORRIS, LEWIS & REYNOLDS, P.A.

Post Office Drawer 9670 Daytona Beach, Florida 32020

For Respondent: William A. Frieder, Esquire

Department of Administration Office Of General Counsel

440 Carlton Building Tallahassee, Florida 32399-1550

BACKGROUND

By a Petition For Formal Proceedings and Notice Of Appearance on Behalf Of Petitioner dated October 23, 1988, received by the Department of Administration on October 26, 1988, and filed with the Division of Administrative Hearings on March 29, 1988, the Petitioner seeks to estop the Respondent, Department of Administration from denying him coverage under the State of Florida Employees Group Health Self Insurance Plan for hospital costs incurred when he was hospitalized for surgery to reverse a previous vasectomy. As grounds therefor, the Petitioner alleges that he advised representatives of the State of Florida Employees Group Health Self Insurance Plan that elective surgery was involved and that he was specifically informed that the hospital costs for the surgery

were covered under the State of Florida Employees Group Health Self Insurance Plan.

At the time of the scheduled hearing the Respondent made an ore tenus motion to remand the matter to the Respondent as being untimely filed or, in the alternative, dismiss the petition as being untimely filed. A ruling was reserved on the motion and the parties allowed to present findings of fact and conclusions of law on the motion in their Proposed Findings of Fact and Conclusions of Law. Upon consideration of the argument of counsel, the facts related to the motion and the applicable law, the Respondent's motion is DENIED. The facts and the law related to the timeliness issue will be covered in the Findings of Fact and Conclusions of Law of this Recommended Order.

In support of his petition, Petitioner testified on his own behalf and presented the testimony of Deborah Warren and Virginia Holzhauser. Petitioner's exhibits 1, 2 and 3 were received into evidence. Respondent presented the testimony of Petitioner and Hazel T. Rosser. Respondent's exhibits 1, 2 and 3 were received into evidence.

The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Prior to the institution of this proceeding, Petitioner had undergone surgical sterilization through a procedure known as a vasectomy.

   
   

2. Subsequent to the Petitioner having the vasectomy, Petitioner made a decision to have the procedure surgically reversed.

   
   

3. At all times material to this proceeding, Petitioner was a member of the State of Florida Employees Group Health Self Insurance Plan (Plan).

   
   

4. At some time prior to having the vasectomy surgically reversed the Petitioner obtained and reviewed the Brochure from the Plan (Petitioner's Exhibit 1).

   
   

5. Page 1 of the Brochure advises the members of the Plan (members) that the Brochure is "not a contract since it does not include all of the provisions, definitions, benefits, exclusions, and limitations" of the Plan and that its purpose is to furnish members a summary of the benefits available under the Plan and provides a regular telephone number and a SunCom telephone number for the Office of State Employees Insurance (OSEI) in Tallahassee, Florida for the members to call if there are any questions.

   
   

6. Page 4 of the Brochure contains a paragraph entitled "Benefit Inquiries" and provides a regular telephone number and a SunCom telephone number for members to call the OSEI on questions concerning benefits.

   
   

7. Page 12 of the Brochure contains a paragraph entitled "Claims Inquiries" and provides a TOLL FREE WATS LINE number for the Jacksonville Office of Blue Cross and Blue Shield for members to use when calling that office on questions concerning claims or claims problems. OSEI interprets "Claims

   Inquiries" to mean inquiries concerning payment, nonpayment or timeliness of claims as distinguished from whether certain services are covered under the Plan which would be "Benefit Inquiry".

   
   

8. Page 9 of the Brochure contains a paragraph entitled "Limitations and Exclusions" wherein surgery to reverse surgical sterilization is listed as one of those procedures that the Plan finds necessary to limit or exclude payment. Immediately above the paragraph entitled "Limitations and Exclusions" on page 9 the Brochure advises the member that exclusions and limitations are contained in the Benefit Document on file in the individual's personnel office and the OSEI in Tallahassee, Florida. The Benefit Document is defined on page 2 of the Brochure as the document containing "the provisions, benefits, definitions, exclusions and limitations of the" Plan.

   
   

9. Section VII, EXCLUSIONS, subparagraph P. of the State Employees Group Health Insurance Benefit Document (Document) (Respondent's Exhibit 3) specifically excludes surgery to reverse surgical sterilization procedures from coverage under the Plan.

   
   

10. The Department of Administration has been designated by the Florida Legislature as the State agency responsible for the administration of the Plan and to make the final determination as what benefits are covered under the Plan in accordance with the Document. There was no evidence presented to show that this responsibility had been delegated to Blue Cross and Blue Shield of Florida, Inc. (Administrator) who was selected by the competitive bid process to provide claims payment services, actuarial and printing services, and medical underwriting of late enrollee applications.

    
    

11. Before having surgery to reverse surgical sterilization, the Petitioner contacted the Jacksonville Office of the Administrator and was advised by an unidentified person in that office that the Plan would cover the hospital costs for reverse surgical sterilization but would not cover the doctor's fee.

    
    

12. The Petitioner did not at any time material to this proceeding contact the OSEI in Tallahassee or the local personnel office concerning the Plan's coverage of surgery to reverse surgical sterilization.

    
    

13. Petitioner acted on the advice of the unidentified person in the Jacksonville Office of Blue Cross and Blue Shield, plus his reading of the Brochure, to come to the conclusion that there was a limitation on the benefits available under the Plan for surgery to reverse surgical sterilization rather than an exclusion of benefits for that procedure; the limitation being that the Plan would pay for hospital costs but not the doctor's fees.

    
    

14. Prior to entering the hospital, the Petitioner's admission, being elective, was certified under the Plan's Preadmission Certification Program. However, the Petitioner was advised that the admission being certified did not mean that the services requested were covered under the Plan and that the services rendered would be subject to the limitations and exclusions listed in the Plan.

    
    

15. On or about July 30, 1986, Petitioner was admitted to Fish Memorial Hospital where Dr. Youngman performed surgery to reverse surgical sterilization and was discharged on July 31, 1986.

16. After surgery was performed, claims were made under the Plan and, the State of Florida, through the Administrator, made the following payments in connection with the surgery: (a) Fish Memorial Hospital - $935.10; (b) Southeast Volusia Radiology Associates - $19.10; (c) Clifford Chu, M.D. - $742.00 and; (d) Robert Charles Youngman, M.D. - 742.00

    
    

17. Although claims made by the different health care providers (providers) for the services rendered to the Petitioner indicated a diagnosis of Azoospermia which is defined as the absence of live spermatozoa in the semen, there was insufficient evidence to show that this diagnosis was the primary reason for payments being made in error to the providers by the Administra- tor for the services rendered in connection with Petitioner's surgery to reverse surgical sterilization.

    
    

18. Subsequent to the health care providers being paid by the Administrator for services rendered to Petitioner under the Plan, the OSEI made a determination that none of the services rendered to the Petitioner to reverse surgical sterilization were covered under the Plan, and demanded reimbursement from the providers. All of the providers, with the exception of Dr. Youngman, reimbursed the Plan but, since the Petitioner had paid Dr. Youngman prior to the claim being made, the Petitioner had received Dr. Youngman's claim and subsequently reimbursed the Plan.

    
    

19. Petitioner made a demand on the State to pay the providers since he had been informed by the Administrator that the services, at least the hospital costs, were covered under the Plan.

    
    

20. Respondent, at Petitioner's request, reviewed its denial of coverage and determined that costs incurred for surgery to reverse surgical sterilization was not covered under the Plan. By letter dated September 25, 1987, received by Petitioner on October 1, 1987, Respondent advised Petitioner of that decision and of his right to a hearing should he desire one. Petitioner was also advised that he had twenty-one (21) days to file a petition and failure to timely comply would result in the action contemplated in the letter becoming final.

    
    

21. A Petition For Formal Proceedings and Notice of Appearance was received by the Respondent on October 26, 1987 bearing a certificate of service dated October 23, 1987.

    
    

22. The petition was mailed by Petitioner and received by the Respondent more than 21 days after receipt of the letter by the Petitioner on October 1, 1987.

    
    

23. Respondent's ore tenus Motion For Remand Or, In The Alternative, To Dismiss The Petition citing Petitioner's failure to timely file his petition was filed at the hearing on May 12, 1988 some five and half (5 1/2) months after Respondent's receipt of the petition.

    
    

24. Upon the Respondent determining that the Petitioner's surgery to reverse surgical sterilization was not covered under the Plan, Petitioner became responsible for all costs incurred for the surgery rather than just Dr. Youngman's fee which resulted in Petitioner being responsible for $3,057.70, in addition to Dr. Youngman's fee. Had the surgery been covered under the Plan, the Petitioner would have only been responsible for $91.90, plus Dr. Youngman's fee.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding, pursuant to Section 120.57(1), Florida Statutes.

    
    

26. The evidence is clear that the Petition For Formal Proceedings was untimely filed, but the evidence is equally clear that the Respondent failed to timely file its motion to dismiss under Rule 28-5.205, Florida Administrative Code, and therefore the motion should be denied. South Broward Citzens v. South Broward County, 502 So.2d 9 (1 DCA Fla. 1986).

    
    

27. The burden of proof in this case rests with the Respondent, which has the affirmative of the issue whether surgery to reverse surgical sterilization is a procedure that is excluded from coverage under the Plan. Balino v. Department of HRS, 348 So.2d 347 (1 DCA Fla. 1977). However, since the Respondent has presented evidence sufficient to prove the procedure to be excluded from coverage under the Plan, Respondent has presented a prima facie case and the burden of going forward with the evidence shifts to Petitioner to prove estoppel against the State.

    
    

28. Petitioner contends that the Respondent should be estopped from asserting the position that surgery to reverse surgical sterilization is excluded from coverage under the Plan because of an earlier contrary representation by an employee of the Administrator upon which Petitioner relied to his detriment. However, in order to demonstrate estoppel the following elements must be shown: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and

1. a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). Although the evidence is clear that an employee of the Administrator did earlier represent to the Petitioner that the procedure was covered under the Plan and the Petitioner did rely upon that representation to his detriment, the evidence is equally clear that the Petitioner knew, or should have known, after review of the Brochure, that the Administrator was not authorized to make representations of coverage under the Plan that were binding on the Respondent. Additionally, the Petitioner knew, or should have known, after review of the Brochure, that coverage of the procedure was either limited or excluded and that the only way to clear up any questions concerning coverage of the procedure was to review the Document in the local personnel office or to contact the OSEI in Tallahassee, Florida. Petitioner did neither. In a matter so important to the Petitioner financially, it was unreasonable for Petitioner to rely on this representation alone when other information available to Petitioner indicated to the contrary.

   
   

   RECOMMENDATION

   
   

   HAVING considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

   
   

   RECOMMENDED that the Department of Administration enter a Final Order DENYING Petitioner payment for the costs incurred for the surgery to reverse surgical sterilization requested in his Petition for Formal Proceedings.

   RESPECTFULLY SUBMITTED and ENTERED this 20th day of July, 1988, in Tallahassee, Leon County, Florida.

   
   

   WILLIAM R. CAVE

   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 20th day of July, 1988.

   
   

   APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-1452

   
   

   The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

   
   

   Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

   
   

   Petitioner's Proposed Findings of Fact were submitted in unnumbered paragraphs but, for clarity, I have numbered them 1 through 18.

   
   

   1. The first two sentences of paragraph one are rejected as not being supported by substantial competent evidence in the record. Although an employee of the Administrator represented to Petitioner that the procedure was covered, there was no approval in that the Administrator did not have that authority.

      The last two sentences of paragraph one are adopted in Findings of Fact 15, 16, and 17.

   2. The first two sentences of paragraph 2 are adopted in Finding of Fact

      19 but clarified. The last two sentences in paragraph two are adopted in Finding of Fact 20.

   3. Adopted in Finding of Fact 20 but clarified.

(4-7) Rejected as immaterial to irrelevant except the last sentence of paragraph 7 which is adopted in Finding of Fact 11 but clarified to show the 800 number being provided under "Claims Inquiries".

1. Adopted in Finding of Fact 11.

2. Adopted in Finding of Fact 11 but clarified.

3. Adopted in Findings of Fact 11 and 14 but clarified.

4. Adopted in Finding of Fact 16.

5. Rejected as immaterial or irrelevant.

6. Adopted in Finding of Fact 18.

7. Adopted in Finding of Fact 24 but clarified.

8. Rejected as not supported by substantial competent evidence in the record.

9. Adopted in Findings of Fact 9 and 13 but clarified.

10. The first sentence of paragraph 17 is adopted in Finding of Fact 8 and although there is a difference in the meaning of "limitations" and "exclusions", there was no substantial competent evidence in the record that the Brochure and

    Document were inconsistent in this regard, therefore the last sentence is rejected.

11. Rejected as a restatement of a witness' testimony and not a finding of fact but additionally, rejected as not being supported by substantial competent evidence in the record.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

(1-6) Adopted in Findings of Fact 1 through 6, respectively. (7-8) Adopted in Finding of Fact 8.

(9-10) Adopted in Finding of Fact 7.

(11-14) Adopted in Findings of Fact 15, 12, 11 and 13, respectively. (15-16) Adopted in Finding of Fact 17.

(17) Rejected as not supported by substantial competent evidence in the record. See Finding of Fact 17.

(18-19) Adopted in Findings of Fact 18 and 19, respectively.

(20) Rejected as a restatement of a witness' testimony and not a Finding of Fact. Also, it would be rejected as not being supported by substantial competent evidence in the record.

(21-22) Adopted in Finding of Fact 20.

(23) Adopted in Finding of Fact 21. (24-25) Adopted in Finding of Fact 22. (26-28) Adopted in Finding of Fact 10.

1. Adopted in Finding of Fact 9.

2. Rejected as a conclusion of law.

COPIES FURNISHED:

William A. Frieder, Esquire Department of Administration

440 Carlton Building Tallahassee, Florida 32399-1550

Lester A. Lewis, Esquire

P. O. Drawer 9670

Daytona Beach, Florida 32020

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-001452

Orders for Case No: 88-001452