STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHYLLIS McCLUSKEY-TITUS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4943

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF STATE EMPLOYEES' ) INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 12, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Phyllis McCluskey-Titus, pro se

2353 Skyland Drive

Tallahassee, Florida 32303

For Respondent: William A. Frieder, Esquire

Department of Administration Room 438, Carlton Building Tallahassee, Florida 32399-1550

STATEMENT OF THE ISSUE

This issue in this case is whether the Petitioner is responsible for payment of certain state employee health insurance premiums.

PROCEDURAL STATEMENT

At hearing, the Petitioner presented the testimony of John Titus and testified on her own behalf. The Petitioner offered three exhibits which were admitted. Respondent presented the testimony of Andrea Black and William Seaton.

The hearing was recorded by magnetic tape. The hearing Officer took possession of the recording at the close of the hearing.

Both parties filed proposed recommended orders. The Petitioner's proposed recommended order was in letter form with numbered paragraphs. The Respondent's "Proposed Findings of Fact and Conclusions of Law" did not set forth proposed conclusions of law. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. In July, 1986, Ms. Phyllis McCluskey-Titus became employed at Florida State University ("FSU"). She and her husband, John, moved to Tallahassee from outside Florida, so that she could accept her employment.

   
   

2. At the time Ms. McCluskey-Titus became employed, Mr. Titus had not yet accepted employment. She appropriately enrolled in the state health insurance plan. Mr. Titus was listed as, and had coverage as, a dependent on her family coverage.

   
   

3. In August, 1986, Mr. Titus accepted employment at Tallahassee Memorial Regional Medical Center ("TMRMC"). Although TMRMC offered an employee health insurance benefit, Mr. Titus retained his coverage on his wife's plan, because the couple believed the state plan's benefits to be more beneficial.

   
   

4. Enrollment in the state health insurance plan requires the payment of premiums. Such premiums are generally paid through joint contributions, by the employee (through payroll deduction) and by the state. However, where spouses are both state employees, and one spouse is listed as an eligible dependent on the other spouse's family coverage, the state makes the full health insurance premium contribution (the "spouse plan").

   
   

5. In August, 1988, Mr. Titus became employed by the Department of Health and Rehabilitative Services ("DHRS"). Both FSU (Ms. McCluskey-Titus's employer) and DHRS are state agencies. Therefore, upon Mr. Titus' employment at DHRS, the couple became eligible for the spouse plan.

   
   

6. On August 24, 1988, Ms. McCluskey-Titus went to her personnel office and completed the necessary forms to qualify for the spouse plan.

   
   

7. At the time of his employment, Mr. Titus received a package of materials from DHRS. Included in the materials was a five page document entitled "EMPLOYEE BENEFITS INFORMATION PACKAGE". The document outlines various insurance benefits and lists premiums related to coverages.

   
   

8. On the first page of the information document, under the heading "PREMIUMS (full-time employees)" is the following statement:

   
   

   "If you and your spouse are both employed with State Agencies, please contact the Personnel office for information on the Spouse Program. If you are eligible, the State will pay up to 100% of your premium".

   
   

   Believing that his wife's completion of the appropriate form at the FSU personnel office was sufficient, Mr. Titus did not contact his personnel office for information.

9. On the third page of the information document, is a form which was to be completed and returned to the DHRS personnel office. Contained on the form is the following statement:

   
   

   "If your spouse is employed with a State Agency in a Career Service position, please contact the Personnel office to request an application for the Spouse Program".

   
   

   Ms. McCluskey-Titus was not employed in a Career Service position. Mr. Titus believed that his wife's completion of the appropriate form at the FSU personnel office was sufficient. He did not obtain or submit an application for the program.

   
   

10. Neither form provided to Mr. Titus stated that both spouses were required to submit separate documentation. There is no evidence that either Mr. or Ms. Titus were informed, by either employer or the Respondent, that the failure to complete separate documentation would preclude enrollment in the spouse program and could result in an assessment of unpaid premiums.

    
    

11. After Ms. McCluskey-Titus submitted the form to the FSU personnel office, the state discontinued deducting her contribution to the health insurance premium from her check. The couple believed that, since no premium deduction was being withheld, the spouse plan enrollment had been completed.

    
    

12. In February, 1989, Mr. Titus was informed that, because he had not completed the appropriate form at the DHRS office, the couple was ineligible for the spouse plan. The Respondent requires that both spouses complete separate documentation in order to enroll in the spouse plan. He completed the form and by March 1, 1989, their coverage in the spouse plan became effective.

    
    

13. The Respondent is now attempting to assess Ms. McCluskey-Titus for the

    $83.46 monthly family coverage premiums which were not deducted from her pay during the five month period preceding Mr. Titus' completion of the appropriate form. The total amount claimed by Respondent is $417.30.

    
    

14. The evidence indicates that, but for Mr. Titus' failure to complete and submit the form, the couple would have been entitled to participate in the spouse plan and no premium contribution would be owed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. At hearing, Rule 22K-1.208(7), Florida Administrative Code, was cited as requiring the completion of separate forms by each spouse in order to enroll in the spouse program. There is no subsection (7) in the cited rule. Rule 22K- 1.209(7), Florida Administrative Code, in relevant part provides that when the spouse of a participant in the state health plan is also a full-time state employee, both covered by the health plan, and the spouse is listed as an eligible dependent under the participant's family coverage, the spouse shall receive the appropriate state contribution beginning with the coverage month following receipt of the "proper application forms" by the Department of

    Administration. The rule contains no definition of "proper application forms". Contrary to the assertion at hearing, the rule does not require that both spouses must complete separate application forms.

    
    

17. Ms. McCluskey-Titus completed the relevant form at FSU. The result of her action was that the deduction from her pay check which had been her contribution towards the premium was discontinued indicating enrollment in the spouse plan. Mr. Titus relied on her actions to have been sufficient to properly enroll in the spouse program.

    
    

18. Ms. McCluskey-Titus suggests that the methods used to inform spouses of the plan enrollment requirements were confusing and insufficient. Her point is well taken. Nothing in Chapter 22K, Part II, Florida Administrative Code, requires that both spouses must complete separate forms in order to enroll in the spouse plan. The DHRS information documents do not indicate that both spouse must complete separate documentation.

    
    

19. Although there may be valid reasons for requiring both spouses to complete separate application forms and submit said forms to their employer, the rule cited as authority by the Respondent does not require such. No evidence was offered to show that, as a statement of agency policy, the requirement is reasonable.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that:

The Department of Administration, Division of State Employees' Insurance, enter a Final Order dismissing the assessment against the Petitioner for additional insurance premiums in the total amount of $417.30.

DONE and RECOMMENDED this 9th day of February, 1990, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 9th day of February, 1990.

APPENDIX CASE NO. 89-4943

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

1. Accepted as modified.

2. Accepted as modified, except for last sentence, rejected, argument, not appropriate finding of fact.

3. Statement that prescription drug claims were covered is rejected, not supported by evidence.

4. Rejected, irrelevant. Nature of communication between the respective personnel offices, rejected, not supported by evidence.

Respondent

1. Accepted.

2. Rejected, not supported by evidence.

3-4. Accepted as modified. However, requirement that both spouses must submit forms, not supported by evidence.

1. Accepted as to amount, rejected as to indicating that Petitioner was responsible for payment, not supported by evidence.

2. Rejected. Paragraph 2E(2) of the Petition does not state that Mr. Titus failed to read the document, but states only that he took no action.

3. Rejected, not supported by evidence.

COPIES FURNISHED:

Phyllis McCluskey-Titus 2353 Skyland Drive

Tallahassee, Florida 32303

William A. Frieder, Esq. Department of Administration Room 438, Carlton Building Tallahassee, Florida 32399-1550

Aletta Shutes Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

PHYLLIS MCCLUSKEY-TITUS,

Petitioner,

vs. CASE NO. A-89-15

DOAH CASE NO. 89-4943

DEPARTMENT OF ADMINISTRATION, DIVISION OF STATE EMPLOYEES' INSURANCE,

Respondent.

/

FINAL ORDER

This cause is before me for the entry of a Final Order. A formal hearing was held on January 12, 1990, pursuant to Section 120.57(1), Florida Statutes, which resulted in a Recommended Order rendered February 9, 1990.

The Findings of Fact of the Hearing Officer in this cause are hereby adopted as the Findings of Fact of this agency.

Rule 22K-1.208(7), F.A.C. provides:

(7) When the spouse of a participant is

also a state officer, full time employee, or part-time employee, and both are covered under the health plan, and the spouse is listed as an eligible dependent under the participant's family coverage, the spouse shall also receive the state contribution beginning with the coverage month following receipt of the proper applications forms by the Department of Administration. (emphasis supplied)

The use of the word forms as opposed to the word form is intended by this rule to refer to the longstanding requirement of this Department that both spouses must complete separate application forms. To deny this construction it must be assumed that this agency chose to use the plural rather than the singular by either inadvertence or error. Neither is correct. This Department's policy, as stated at the hearing, and as memorialized in this rule, requires that each spouse complete a separate application form in order to receive the benefit of employer contributions for both spouses. Such a rule is inherently sensible since the forms require verification of employment of both spouses who often work for two separate employers within the state government.

I am not insensitive however to the assertion by Petitioner that once she had filled out the enrollment form with her employer and noted that employee contributions were no longer being taken from her salary, and since her husband had no deductions made from his salary, that she assumed that she was properly enrolled in the spouse plan. Nothing less than a direct inquiry by Petitioner to the Division of State Employees' Insurance would have revealed to her that she had not been properly enrolled. Nothing in this record demonstrates that she should have made such an inquiry.

Therefore, insofar as the Conclusions of Law submitted by the Hearing Officer are consistent with this discussion they are adopted as the Conclusions of Law of this agency, but insofar as they are not consistent with this discussion they are rejected.

In view of the foregoing it is hereby ORDERED that the Petition of Phyllis McCluskey-Titus to be relieved of the assessment made against her in the amount of $417.30 is hereby GRANTED and the action of this agency in assessing that amount against her is hereby REVERSED. The Petitioner and her husband shall be enrolled in the spouse plan Nunc Pro Tunc as if the appropriate documentation through both employers had been received on a timely basis. Each party shall bear its own costs in this matter.

DONE AND ORDERED at Tallahassee, Leon County, Florida this 29th day of March, 1990.

ALETTA L. SHUTES, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-4116

Certificate of Clerk:

Filed in the official records of the Department of Administration this 30th day of March, 1990.

Deputy Clerk

Copies Furnished:

William F. Quattlebaum Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Phyllis McCluskey-Titus 2353 Skyland Drive

Tallahassee, Florida 32303

William A. Frieder, Esquire Senior Attorney

Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-004943

Orders for Case No: 89-004943