STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUINTIN A. CLARK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4345

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on October 11, 1990 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Quintin A. Clark, pro se

1025 Putnam Drive

Sarasota, Florida 34234

For the Respondent: Augustus D. Aikens, Jr., Esquire

General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

STATEMENT OF THE ISSUES

The issue for consideration herein is whether the Petitioner is entitled to reimbursement from the Florida Flexible Benefits Plan Medical Reimbursement Account for expenses incurred prior to March 8, 1990.

PRELIMINARY STATEMENT

By letter dated May 14, 1990, David W. Ragsdale, Chief

of the Department of Administration's Bureau of Benefit Programs and Audit, advised the Petitioner, Quintin A. Clark, that he would not be reimbursed for claims filed prior to March 8, 1990 with the Florida Flexible Benefits Plan Medical Reimbursement account. Thereafter, by letter received in the Department of Administration on June 7, 1990, Mr. Clark requested an administrative hearing on the matter, and on July 12, 1990, the matter was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. After Initial Orders were sent to both parties and responded to by the Petitioner, the

undersigned, to whom the case had been assigned in the interim, set the hearing for October 11, 1990, in Sarasota, at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf

but presented no documentation. Respondent presented the testimony of Charles R. Pierce, the State Benefits Administrator for the Department's Division of Insurance, and introduced Respondent's Exhibits A through H.

No transcript was furnished but both parties submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the matters in issue

   here, the Petitioner, Quintin A. Clark, was a full-time employee of the Department of Health and Rehabilitative Services in its Sarasota County Public Health unit, and the Respondent, Department, was the state agency responsible for administering all state insurance plans for state employees in the State of Florida.

   
   

2. As a part of its insurance program, the state offered the Florida Flexible Benefits Plan, (Plan). This is a benefit program for employees under which specified, incurred medical expenses may be reimbursed. The plan extends for the fiscal year December 1 to November 30 of each year. There is a reimbursement maximum of $2400.00 per year and the maximum reimbursement may not be substantially in excess of the total premium paid for the participant's coverage.

   
   

3. During the month of October, 1989, the Respondent conducted an open enrollment period of all state employees who wished to enroll in the plan. Petitioner did not enroll during that open enrollment period. However, in February, 1990, after the birth of his daughter on January 11, 1990, he elected to enroll in the plan and was accepted on the basis that the birth of his child was considered a qualifying status change event.

   
   

4. Mr. Clark elected to contribute $1,650.00 per year

   in the Medical Care account to fund reimbursement payment for medical expenses, and authorized deductions of $82.50 per paycheck for 20 biweekly pay periods. By the same token, he also elected to contribute $1,700.00 to the Dependent care account for dependent care reimbursement and authorized a payroll deduction for that expense of $85.00 per biweekly payroll cycle.

5. Mr. Clark submitted his Form FB-2, Enrollment/Qualifying Status Change Form, on February 6, 1990. A copy of that form, revised in December, 1989, reflects, on the back of the employee's pink copy:

   
   

   The effective date of plan participation or qualifying status change will be the date the signed and properly completed form is received by DSEI.

   
   

6. The form signed by Mr. Clark does not indicate it is a copy of the revised form, but there is no evidence to indicate the forms are different in this particular.

   
   

7. Notwithstanding Mr. Clark submitted his completed

   form on February 6, 1990, the form was not received by Respondent, DSEI, until March 8, 1990. No explanation was given for the delay of approximately 32 days between the time the form was submitted by Petitioner and the day it reached the Department.

   
   

8. On April 24, 1990, Mr. Clark submitted claims for medical reimbursement for his wife and infant daughter for services incurred on the following dates:

   
   

   6/89 - 1/90.	prenatal	$130.00
   11/6/89	pregnancy	30.00
   11/13/89	"	30.00
   11/20/89	"	30.00
   12/16/89	Hosp. visit	20.30
   1/10/90	Sara. Mem.	466.25
   1/11/90	Epidural	112.00
   1/12/90	Sara. Mem.	789.95

   1/12 - 13/90 well baby care 39.00 1/26/90 " " " 37.00

   3/9/90 " " " 3.70

   
   

9. Among these claims, the total value of which exceeded $1,386.20, were included claims for services rendered

   prior to the date DSEI received Petitioner's enrollment form on March 8, 1990. All these claims incurred prior to that date were denied by the Respondent for that reason. Only the March 9, 1990 claim was considered as qualifying and eligible for payment.

   
   

10. Petitioner claims that the information contained

    in the literature on the program given out by the Department is unclear and contradictory. Specifically he refers to the sample instructions which are outlined on Page 17 of the September, 1989 edition of the plan brochure made available to prospective participants. In that portion entitled "Instructions & Information", which appears to be the reverse of the sample form found on Page 16, at 5, the form reads:

    
    

    Expenses must occur within the plan year and while the employee was a plan participant to qualify. The plan year runs from December 1 through November 30.

11. That provision does not appear to be inconsistent with the Department's denial of reimbursement for the expenses claimed prior to March 8, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

13. Under the provisions of Section 110.123(5), Florida Statutes, the Secretary of the Department of Administration is given the responsibility for administering the state group insurance program. Inherent in that responsibility, but subject to legislative approval, is the authority to determine benefits and the contributions required therefor.

    
    

14. Under the provisions of 26 U.S.C. 105(b), contributions under a medical reimbursements plan such as here may be considered as nontaxable income if certain conditions are met. These include:

    
    

    1. The reimbursement must be paid pursuant to an employer-funded "accident or health plan" as defined in Section 105(e) and Section 1.105-5;

    2. Reimbursements are paid specifically to reimburse the participant for medical expenses incurred during the period of coverage;

    3. The reimbursed medical expenses must have been incurred during the period for which the participant is actually covered by the plan;

    4. The plan may not be sold so as to include coverage only for periods during which the participant expects to incur medical care; and

    5. The discrimination rules of Section 105(h) must be satisfied.

       
       

15. In the instant case, Mr. Clark meets all the requirements for qualification except one. In this case, the evidence clearly indicates that Mr. Clark has requested reimbursement for claims which he incurred prior to his enrollment in the plan. Even assuming, arguendo, that his enrollment was effective the day he signed and submitted the enrollment form, February 6, 1990, nonetheless, all expenses except the one for which payment was approved, that on March 9, 1990, were incurred before even February 6, 1990. His claim that expenses incurred even before he was enrolled in the plan, though within the plan year, are covered is unreasonable and without merit.

16. As the claimant, Petitioner has the burden of proof to establish by a preponderance of the evidence that he is entitled to payment. Tropical Park, Inc. v. Ratliff, 97 So.2d 160 (Fla. 1957), Florida Department of Health and Rehabilitative Services

    v. Career Service Commission, 289 So.2d 412, (Fla. 4 DCA 1974).

    
    

17. Since Petitioner was unable to show that he was enrolled in the program prior to incurring the medical expenses for which reimbursement is sought, he has failed to meet this burden and he cannot justifiably claim reimbursement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered denying Petitioner, Quintin A. Clark, reimbursement for the expenses incurred prior to February 6, 1990.

RECOMMENDED this 13th Tallahassee, Florida.

day of November, 1990, in

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 13th day of November, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4345

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 to this case.

FOR THE PETITIONER:

1. Accepted and incorporated herein except that Petitioner was a participant in the plan at the time the expenses were incurred.

FOR THE RESPONDENT:

1 - 9. Accepted and incorporated herein.

COPIES FURNISHED:

Quintin A. Clark 1025 Putnam Drive

Sarasota, Florida 34234

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399- 1550

Aletta Shutes Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING THEIR RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-004345

Orders for Case No: 90-004345