STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD HORNBY, )

)

Petitioner, )

)

v. ) CASE NO. 88-5069

) DEPARTMENT OF ADMINISTRATION )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a oral hearing was held by the Division of Administrative Hearings before one of its designated Hearing Officers, William

1. Cave, on February 22,1989 in Tallahassee, Florida. The issue for determination is whether the Petitioner should have been allowed to enroll in the Capital Health Plan HMO for the 1988-89 academic year immediately upon his return to work on August 4, 1988, having withdrawn frog the plan during the 1987-88 academic year because of an authorized leave without pay.

   
   

   APPEARANCES

   
   

   For Petitioner: Ronald G. Meyer, Esquire

   MEYER, BROOKS AND COOPER, P. A.

   2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

   
   

   For Respondent: William A. Frieder, Esquire

   Department of Administration

   440 Carlton Building Tallahassee, Florida 32399-1550

   
   

   BACKGROUND

   
   

   The Petitioner initiated this action by filing a Petition For Formal Hearing protesting the denial by Respondent of his enrollment in the Capital Health Plan HMO for the 1988-89 academic year accorded to similarly situated state of Florida employees immediately upon his return on August 4, 1988, from a leave of absence during the 1987-88 academic year.

   
   

   In support of his position, Petitioner testified on his own behalf, and introduced Petitioners exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 which were received into evidence. Respondent presented the testimony of Hazel Rosser, and introduced Respondent's exhibit 1 which was received into evidence.

   
   

   The Petitioner submitted posthearing Proposed Findings of Fact and Conclusions of Law, whereas the Respondent submitted only posthearing Proposed Findings of Fact. 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. Since on or about September, 1980, the Petitioner has been a full-time employee of the Florida State University System, and up until the 1987-88 academic year a participant in the state of Florida health insurance program offered through the Florida State University by the Respondent, Department of Administration.

      
      

   2. During the 1987-88 academic year, the Petitioner was granted an unpaid leave of absence so that he could pursue a teaching assignment in the National Republic of China.

      
      

   3. Since the 1983-84 academic year, the Petitioner had been a participant in the Capital Health Plan Health Maintenance Organization (HMO) offered in Tallahassee, Florida under the Respondent's insurance program.

      
      

   4. Since the Petitioner could not avail himself of the benefits of the HMO in which he was enrolled in Tallahassee, Florida during the time he anticipated being in the National Republic of China, at or about the time the Petitioner commenced his unpaid leave of absence, he notified the personnel office at Florida State University that he wished to discontinue his participation in the HMO.

      
      

   5. During the 1987-88 academic year, the Petitioner did not make payments to continue his coverage during his period of leave of absence in the HMO.

      
      

   6. Immediately upon his return to employment on or about August 4, 1988, the Petitioner inquired of the personnel office at Florida State University of the steps to be taken to obtain coverage under his previous HMO for the 1988-89 academic year. The Petitioner was given certain forms to complete and return to the Florida State University personnel office. Petitioner completed and returned those forms as instructed but was informed that he could not reenroll since no open period of enrollment was available to him at that time.

      
      

   7. By letter dated July 8, 1988, Ronald G. Meyer, representing the United Faculty of Florida , FTP-FEA, corresponded with Mr. Carl Ogden, Director, Division of State Employees' Insurance, concerning a group of university faculty members who would not be on campus during the open enrollment period effective June 22, 1988 through July 15, 1988, and the need for a special open enrollment period upon them returning to their respective campus.

      
      

   8. By letter dated July 19, 1988, Mr. Ogden responded to Mr. Meyer's letter of July 8, 1988 and informed Mr. Meyer that the employees identified in his letter would be accommodated, and set out the procedure for that to be accomplished. The group of employees referred to in Mr. Meyer's letter and addressed by Mr. Ogden are those employees referred to as being "employed less than year round" and identified in Rule 22K-1.054(7), Florida Administrative Code, but does not include an employee such as Petitioner who was on an authorized leave without pay during this open enrollment period.

      
      

   9. The employees covered by the memorandum dated August 12, 1988 from Harriette A. Hudson, Manager, Insurance and Benefits, Florida State University, advising the "salaried Faculty Off Summer Payroll" of the special open

      enrollment period does not include employees such as Petitioner who was on an authorized leave without pay until August 4, 1988. Additionally, there was no evidence that this "open enrollment period " was designated by the Department of Administration or that the Department of Administration had authorized Florida State University to designate this open enrollment period.

      
      

   10. There was no open enrollment period available to Petitioner during August 1988. The first open enrollment period available to Petitioner after returning to work in August 1988 was in December 1988, at which time he reenrolled and became eligible for benefits on March 1, 1989.

       
       

   11. Only the Secretary of the Department of Administration has authority to determine an open enrollment period which is accomplished by numbered memorandum.

       
       

       CONCLUSIONS OF LAW

       
       

   12. 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.

       
       

   13. Rule 22K-1.212(2)(b), Florida Administrative Code, provides as follows:

       
       

       (b) An employee who does not continue coverage while on authorized leave without pay may only apply for reenroll- ment in the Health Plan after return to active work and by submitting a Health Care Option Selection form and a New Enrolle form to his or her personnel office during the open enrollment period.

       
       

   14. Rule 22K-1.103(13), Florida Administrative Code, in pertinent part defines an "open enrollment period" as "a period designated by the Department of Administration each calendar year during which time employees may enroll in the Health Plan; or, if residing in a qualified HMO's service area, employees may enroll in such ......" (emphasis supplied).

       
       

   15. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

v. J.W.C. Company, Inc., 396 So.2d 412 (4 DCA Fla. 1974). Petitioner has failed to sustain his burden to prove entitlement to coverage under the state of Florida Health Plan during the period from August 4, 1988 through February 28, 1989.

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 Respondent enter a Final Order denying Petitioner's request for coverage under the state of Florida Health Plan and any costs he may have incurred as a result of not being covered under the state plan.

RESPECTFULLY submitted and entered this 29th day of March, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0277

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings Submitted by Petitioner 1.-2. Adopted in Findings of Fact 2 & 4, respectively.

1. Immaterial to the conclusion reached herein.

2. Adopted in Finding of Fact 5.

5.-6. Subordinate to facts actually found in the Recommended Order.

7. Adopted in Finding of Fact 10.

Specific Rulings on Proposed Findings Submitted by Respondent 1.-6. Adopted in Findings of Fact 1 - 6, respectively.

7.-8. Subordinate to facts actually found in the Recommended Order.

9. Adopted in Finding of Fact 10, but modified. 10.-11. Immaterial to the conclusion reach herein.

12. Rejected as being a conclusion of law rather that a finding of fact.

COPIES FURNISHED:

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikins, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Ronald G. Meyer, Esquire

MEYER, BROOKS AND COOPER, P. A.

P.O. Box 1547

Tallahassee, Florida 32302

William A. Frieder, Esquire Department of Administration

440 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-005069

Orders for Case No: 88-005069