STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY E. WEAVER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5571

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF STATE EMPLOYEES' ) INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on January 4, 1994, in Wauchula, Florida.

APPEARANCES

For Petitioner: Gregory Weaver, pro se

Route 1, Box 423

Wauchula, Florida 33873

For Respondent: Augustus D. Aikens, Esquire

Division of State Employees' Insurance

2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876

STATEMENT OF THE ISSUES

Whether Petitioner made a timely election to participate in the Florida Flexible Benefits Plan (Plan) in accordance with Rule 60P-8.0041(2), Florida Administrative Code and if not, should his participation in the Florida Flexible Benefits Plan (the Plan) for the Plan Year of December 1, 1991, through December 31, 1992, be denied.

Whether Petitioner would be entitled to reimbursement from the Plan for medical expenses incurred prior to November 12, 1992, provided it is determined that Petitioner made a timely election to participate in the Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated August 2, 1993, the Respondent, Department of Management Services, Division of State Employees' Insurance (Division) advised the Petitioner, Gregory E. Weaver, that the Division had denied Petitioner's claim for reimbursement from the Florida Flexible Benefits Plan Medical Reimbursement Account that was for medical expenses incurred prior to November 12, 1992.

Thereafter, by letter dated August 23, 1992 and received by the Division on September 2, 1992, the Petitioner requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes. By an Order Accepting Petition And Assignment To The Division of Administrative Hearings dated September 27, 1993, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing. The initial Order Accepting Petition And Assignment To The Division of Administrative Hearings was amended on October 12, 1993, to correct the issue for resolution.

At the hearing, the Petitioner testified in his own behalf and presented the testimony of Karen S. Weaver. Petitioner's exhibits 1 through 12 were received as evidence in this case. The Division presented the testimony of Verla Lawson. The Division's exhibits 1 through 3 were received as evidence in this case. Chapters 60P-8, Florida Administrative Code, and Proposed Treasury Regulation, Section 1.125-1 (as Amended) were officially recognized.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The parties timely filed Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Petitioner was a full- time employee of the University of Florida, Institute of Food and Agriculture Science (IFAS) in Hardee County, Florida and as such, was eligible to participate in the Plan Medical Reimbursement Account provided he timely elected to participate and was otherwise qualified.

   
   

2. The Respondent is the state agency charged with the responsibility of administering all state insurance plans for state employees in the State of Florida.

   
   

3. As part of its insurance program, the State of Florida offers the Florida Flexible Benefits Plan. The Plan is a benefit program for state employees under which specified, incurred medical expense may be reimbursed. The period of coverage for the Plan material to this proceeding was December 1, 1991 through December 31, 1992.

   
   

4. Petitioner did not enroll in the Plan during the open enrollment period for all state employees conducted by the Division during the month of October 1991.

   
   

5. During the summer of 1992, and again in October 1992, (sometime after the child was born on October 5, 1992) the Petitioner's wife, Karen S. Weaver, contacted the Division by telephone to inquire about, and to get clarification on, enrolling in the Plan based on a "Change In Family Status" (the child' birth) after the effective date of the Plan, December 1, 1991. On both occasions, Karen Weaver talked with an enrollment agent of the Division and, other than the child's date of birth, no effective date was discussed. The enrollment agent advised Karen Weaver that the Petitioner could not apply until after the birth of the child due to the documentation needed concerning the

   child's birth. Neither Karen Weaver nor Petitioner were ever advised that with proper certification of pregnancy from the wife's doctor that Petitioner could apply before the birth of the child.

   
   

6. After the wife's last conversation with the Division, the Petitioner completed and signed a Reimbursement Account Enrollment/Qualifying Status Change Form, Form FB-2 (the Form) which was dated October 23, 1992. Whether the Petitioner returned the Form to IFAS's personnel office by mail or hand delivery is not clear from the record. However, a notation on the bottom of the Form indicates the Form was received by the personnel office of IFAS on November 9, 1993. The Form was received by the Division on November 12, 1992.

   
   

7. The instructions in the Revised September 1991 Florida Flexible Benefits Plan booklet on when Form FB-2 must be submitted provides in pertinent part as follows:

   
   

   Requests must be made by submitting a completed Enrollment/Qualifying Status Change Form, FB-2 (available from your personnel office), to DSEI within 31 days of the event's occurrence. . . .

   
   

8. The instructions on the reverse side of Form FB-2 as to the submission of the form provides:

   
   

   Return this completed from to your personnel office. It must be received at DSEI within

   31 days of your employment or change in family/employment status. The personnel office is responsible for sending the form immediately upon its receipt to DSEI. THE EFFECTIVE DATE OF PLAN PARTICIPATION OR CHANGE IN FAMILY/EMPLOYMENT STATUS WILL BE THE DATE THE SIGNED AND PROPERLY COMPLETED FORM AND DOCUMENTATION ARE RECEIVED BY DSEI.

   
   

9. Petitioner was accepted in the Plan with an effective date of enrollment being November 12, 1992, the date the Division received the Form from Petitioner. The Petitioner elected to contribute $900.00 to the Plan Medical Reimbursement Account to fund reimbursement payment for incurred medical expenses. The Petitioner's acceptance in the Plan was based on the Division having: (a) considered the child's birth as a qualifying status change and; (b) determined that the Petitioner had timely elected to participate in Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code, in that the Form has been completed and dated (not received by the Division) within 31 calendar days of the occurrence of the qualifying status change.

   
   

10. There was insufficient evidence to establish facts to show that within

    31 calendar days of occurrence (child's birth) of Qualifying Status Change the Petitioner had: (a) placed the Form with the U.S. mail or similar carrier for delivery to the personnel office of IFAS for submission to the Division; (b) placed the Form with the U.S. mail or similar carrier for submission with the Division; (c) hand delivered the Form to the personnel office of IFAS for submission to the Division or; (d) hand delivered the Form to the Division.

11. Notwithstanding that the notation on the bottom of the Form indicates that the personnel office of IFAS had the Form in its possession as early as November 9, 1992, there is competent substantial evidence to show that the Division did not receive the Form until November 12, 1992.

    
    

12. Likewise, there is competent substantial evidence to show that the Respondent did not make a timely election to participate in the Plan by submitting the Form to the Division within 31 calendar days of occurrence (child's birth) of qualifying status change as required by Rule 60P-8.0041(2), Florida Administrative Code, notwithstanding that the Form was dated October 23, 1992, well within the first 31 calendar days of occurrence (child's birth) of the qualifying status change.

    
    

13. On December 14, 1992, the Petitioner submitted a claim for medical expense reimbursement for his wife and infant daughter for medical expenses incurred in the month of March, April, June, October and December, 1992.

    
    

14. By letter dated December 24, 1992, the Division advised the Petitioner that expenses incurred prior to his enrollment date of November 12, 1992, (the date the Form was received by the Division) were not eligible for reimbursement and to resubmit claims for services incurred after November 12, 1992. There was no evidence presented as to whether the Petitioner resubmitted the medical expenses incurred during the month of December 1992, for reimbursement.

    
    

15. The Petitioner contends that the Division should grant Petitioner an exception to the requirement that the effective date must be the date Form FB-2 is received by the Division and allow the effective date in this instance to be the date of occurrence, October 5, 1992, (date of child's birth) of qualifying status change. The Petitioner's contention is based primarily on the fact that the verbal instructions from the Division was misleading, and that the Division had made an exception by allowing the Petitioner to participate in the Plan even though the Petitioner had not timely elected to participate in the Plan in accordance with Rule 60P-8.0042, Florida Administrative Code.

    
    

16. The Division denied the Petitioner's request for an exception contending that there is no provision for granting an exception in either case. The Division also contends that date Form FB-2 is completed and signed is the date to be used to in calculating the 31-calendar day requirement to determine if an employee has timely elected to participate in the Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code. The Division's position is expressly stated in Petitioner's exhibit 8 wherein William H. Lindner, Secretary, Department of Management Services, is responding to a letter from Petitioner and states:

    
    

    In your letter you indicated that an exception had been made in the enrollment process. It had not. Subsection 60P- 8.0041(2), F. A. C. (copy enclosed) indicates that an election to participate in the reimbursement accounts must be made within the first 31 calendar days of the occurrence of the Qualifying Status Change. Our records

    indicate that you made your election on October 23, 1992 which is within 31 days of the birth of your child on October 5, 1992.

    
    

    The records indicate that the Form was signed on October 23, 1992, well within the 31-day requirement but was not received by the Division until November 12, 1992, some seven days after the 31-day requirement had expired.

    
    

    CONCLUSIONS OF LAW

    
    

17. 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.

    
    

18. Acting in accordance with the authority granted to it by the Legislature under Section 110.161(5), Florida Statutes, the Department of Management Services promulgated Chapter 60P-8, Florida Administrative Code, which sets forth the rules governing participation under the reimbursement account component of the Florida Flexible Benefits Plan.

    
    

19. Since the Petitioner had not enrolled in the Plan during the annual open enrollment period conducted by the Division in October, 1991, he must experience an appropriate change in family status after the effective date of the Plan in order to participate in the Plan. Rule 60P-8.0041(2), Florida Administrative Code provides in pertinent part as follows:

    
    

    (2) An employee . . . experiencing an appropriate change in Family Status after the effective date of the Plan shall make an election to participate in the Plan within the first 31 calendar days of . . . occurrence of the Qualifying Status Change. The employee shall elect to participate by submitting to the Division of State Employees' Insurance a completed Reimbursement Account Enrollment/Qualifying Status Change Form, Form FB-2, revised 12/89, hereby incorporated by reference, specifying his annual election amount(s) for the account(s) for a period as defined in Rule 60P-8.0042 . . . . (Emphasis supplied).

    
    

    Therefore, an election to participate in the Plan requires the employee to submit a completed form to the Division. While the term "submit" has not been specifically defined by the statute or rule involved herein, it is clear by the instructions contained on the reverse side of Form FB-2, which has been incorporated by reference in Rule 60P-8.0041(2), Florida Administrative Code, that submit means received by the Division within 31 calendar days of the date of the occurrence. Otherwise, an employee could circumvent the 31-day requirement by predating the form and mailing the predated form after the 31- calendar day requirement had expired.

    
    

20. In the instant case, the evidence is clear that the personnel office of IFAS received the Form no later November 9, 1992, however, the form was not received by the Division until November 12, 1992, some seven days after the 31- day requirement had expired. Therefore, the Petitioner, having failed to timely

    make an election to participate in the Plan as required by Rule 60P-8.0041(2), Florida Administrative Code, was not qualified to participate in the Plan for the period of coverage.

    
    

21. However, assuming arguendo that the Division was correct in determining the Petitioner had met the 31-calendar day requirement of Rule 60P- 8.0041(2), Florida Administrative Code, and thereby qualified to participate in the Plan, then Rule 60P-8.0042, Florida Administrative Code, provides that the coverage period would be from the date that the properly completed Form FB-2 is received by the Division (November 12, 1992) through the last day of the Plan Year (December 31, 1992). Both the instructions in the Revised September 1991 Florida Flexible Benefits Plans and the instructions on Form FB-2 are consistent with this position. Therefore, reimbursement payments could only be for medical expenses incurred between November 12, 1992, and December 31, 1992. There does not appear to be any authority, and the Division contends there is none, which would allow the Division to make an exception to the effective date requirement of Rule 60P-8.0042, Florida Administrative Code.

    
    

22. Petitioner, as the party asserting the affirmative of an issue before an administrative tribunal, has the burden to prove by a preponderance of the evidence that he is qualified to participate in the Plan and if qualified, then the effective date for the Plan period of coverage should have been October 5, 1992, rather than November 12, 1992. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1991). The Petitioner has failed to sustain his burden in regard to his being qualified to participate in the Plan or as to the effective date for the period of coverage for the Plan.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, Department of Management Services, Division of State Employees' Insurance enter a final order finding that the Petitioner failed to timely elect to participate in the in Plan in accordance with Rule 60P-8.0041(2), Florida Administrative Code, was not qualified to participate in the Plan, and any participation in the Plan allowed by the Division was void ab initio. It is further recommended that the Division refund all contributions made by the Petitioner to the Plan after adjustment for any reimbursement for medical expenses that may have been made to the Petitioner by the Division.

DONE AND ENTERED this 16th day of February, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

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 16th day of February, 1994.

APPENDIX TO RECOMMENDED ORDER NO. 93-5571

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

Petitioner, Gregory E. Weaver's Proposed Findings of Fact.

1. The following proposed finding(s) of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact:1(1); 3-4(5); 5-6(9); 7(6,11); 9(11); 10(6,11); 11(9,16); 12(9); 13(8); 14-15(13); 16(15); 17(16); 18(5) and 19(6).

2. Proposed Finding of Fact 2 is neither material nor relevant to this proceeding.

3. Proposed Finding of Fact 8 is more properly covered in the Conclusions of Law.

4. Proposed Finding of Fact 20 is more an argument than a finding of fact.

Respondent's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,2); 2(3); 3(4,6,9); 4(9); 7(13); and 8(14).

2. Proposed finding of fact 5 is not supported by competent substantial evidence in the record. See Findings of Fact 10 and 11.

3. Proposed finding of fact 6 is adopted in substance as modified in Findings of Fact 6 and 11, except for the first sentence which is rejected as I find no evidence as to the Form being mailed.

4. Proposed findings of fact 9 and 11 ( there is no proposed finding of fact 10) are adopted in substance as modified in Finding of Fact 7 and 8.

COPIES FURNISHED:

Gregory Weaver Route 1, Box 423

Wauchula, Florida 33873

Augustus D. Aikens, Esquire

Division of State Employment Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876

William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Alecia Runyon, Director

Division of State Employees Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876

Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 307

2737 Centerview Drive

Tallahassee, Florida 32399-0950

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 contact the agency that will issue the final order in this case concerning agency 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: 93-005571

Orders for Case No: 93-005571