STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY MOSSER, )

)

Petitioner, )

)

vs. ) Case No. 01-2648

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 26, 2001, in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert M. Sturrup, Esquire

Robert M. Sturrup, P.A.

2601 East Oakland Park Boulevard Suite 503

Fort Lauderdale, Florida 33306

For Respondent: Robert B. Button, Esquire

Division of Retirement 2639 North Monroe Street

Cedars Executive Center, Building C Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to receive Health Insurance Subsidy payments retroactive to July 1995, the month

she began to receive retirement benefits from the Respondent as the surviving spouse of a member of the Florida Retirement

System.

PRELIMINARY STATEMENT

In a letter dated March 2, 1998, the Department of Management Services, Division of Retirement, ("Division") notified Mary J. Mosser, now Mary J. Kirkley, that she was eligible to receive retroactive Health Insurance Subsidy payments as the surviving spouse of Harold Mosser for only six months prior to the date on which she submitted her application for this subsidy. The Division explained in its letter that its decision was compelled by Rule 60S-4.020(2), Florida Administrative Code, which provides that, if application for the Health Insurance Subsidy is made more than six months after retirement benefits commence, the subsidy can be paid retroactively for a maximum of six months.

In her Petition for Review of Final Agency Action, dated March 20, 1998, which included a Request for Hearing and Mediation, Mrs. Kirkley disputed the Division's decision and stated:

Petitioner's substantial interests have been adversely affected by the wrongful denial of retroactive health insurance subsidy (HIS) benefits of $90.00 per month for the 24 month period from July, 1995 through June, 1997.

Total of benefits denied: $2,160.00

The wrongful denial of these benefits is solely due to the oversight or neglect of the Division of Retirement in failing to advise Petitioner of her right to apply for health insurance subsidy (HIS) benefits or to ever send Petitioner the application form for HIS benefits for over 2 1/2 years.

* * *

The only reason Petitioner did not apply for HIS benefits before October, 1997 was that the Division of Retirement never sent me the application for those benefits nor mentioned or ever hinted at my possible entitlement to those benefits of $90.00 per month until late September, 1997.

Petitioner should not suffer the loss of

$2,160 in HIS benefits because of the oversight or carelessness of the Division of Retirement of not sending her the HIS application until September, 1997, over

2 1/2 years after her late husband's death. As Petitioner had been designated to receive the full benefits of her late husband's account upon his passing, Petitioner should have been receiving the $90.00 per month health insurance subsidy starting July, 1995 when the changeover was made from payments to her late husband to payments directly to Petitioner following his death.

The Division duly forwarded this matter to the Division of Administrative Hearings for assignment of an administrative law judge, and the hearing was scheduled for August 27, 2001. The hearing was continued on Mrs. Kirkley's motion until

September 26, 2001.

At the hearing, the parties offered Joint Exhibits

1 through 6, which were received into evidence. Mrs. Kirkley

testified in her own behalf and presented the testimony of her son, Timothy J. Mosser. The Division presented no live testimony at the hearing. Respondent's Exhibits 1 and 2 were offered and received into evidence; Respondent's Exhibit 2 is the transcript of the deposition of Pat Connolly, Chief of the Division's Bureau of Benefits Payments, which was received pursuant to Rule 1.330(a)(3), Florida Rules of Civil Procedure, in lieu of live testimony. Counsel for Mrs. Kirkley objected to a question in the deposition; after hearing argument of counsel, the objection was sustained, and that portion of Mr. Connolly's testimony appearing on page 13, lines 1 through 25, and on page 14, lines 1 through 6, was stricken from the record.

The parties did not file a transcript with the Division of Administrative Hearings. Both parties did, however, timely file proposed findings of fact and conclusions of law after having been granted extensions of time to do so.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Division is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida retirement and pension systems. Section 121.025, Florida Statutes (1995). The Division is, and

   was at the times material to this case, also responsible for administering the Retiree Health Insurance Subsidy.

   Section 112.363(7), Florida Statutes (1995).

   
   

2. Harold Mosser, the former husband of Mrs. Kirkley, retired from his job as a school principal in August 1979, and he was a member of the Florida Retirement System. Mr. Mosser received a monthly state retirement benefit, and, as a supplement to the retirement benefit, he received a monthly Health Insurance Subsidy.

3. Mrs. Kirkley retired from her job as a schoolteacher in 1989, and she is a member of the Florida Retirement System. Since her retirement, Mrs. Kirkley has received a monthly state retirement benefit and a monthly Health Insurance Subsidy.

4. Mr. Mosser died on April 28, 1995. Mrs. Kirkley did not advise the Division of Mr. Mosser's death. Rather, the Division learned of his death in July 1995, when conducting a routine check of the Bureau of Vital Statistics "death tape."

5. As Mr. Mosser's surviving spouse and the person he named as his joint annuitant, Mrs. Kirkley was entitled to receive an "Option 3" monthly retirement benefit for the remainder of her lifetime, pursuant to Section 121.09, Florida Statutes (1995). Mrs. Kirkley was also eligible to receive a monthly Health Insurance Subsidy upon filing an application for the subsidy with the Division, and this benefit included payment

   of the subsidy from the date of Mr. Mosser's death or for the six months prior to the date the application was filed.1

6. In a Statement of Retirement Benefit Payments dated 1/31/95, the components of Mr. Mossers's monthly retirement benefit payments were identified. At the time of his death, Mr. Mosser received a gross monthly retirement benefit of

   $1,730.60, plus a Health Insurance Subsidy of $90.00, minus

   
   

   $250.00 withholding tax, for total net monthly benefits of

   
   

   $1,570.60. Because the Division did not learn of Mr. Mosser's death until July 1995, his monthly benefit check was issued in May and June 1995 and electronically deposited in NationsBank.

7. When the Division learned of Mr. Mosser's death, a Division representative tried to reach Mrs. Kirkley by telephone but could not obtain her unlisted telephone number. The representative then sent Mrs. Kirkley a letter dated July 20, 1995, in which the representative advised Mrs. Kirkley that

   Mr. Mosser's estate was entitled to receive his benefits for the month of April 1995 in the net amount of $1,570.60 and that she must apply for a continuing monthly benefit as Mr. Mosser's designated beneficiary. The representative also advised

   Mrs. Kirkley to complete the Division Form FST-11b that was enclosed with the letter and to return it to the Division together with Mr. Mosser's death certificate. Mrs. Kirkley

   completed the form enclosed with the letter and mailed it to the Division as directed.

8. The Division changed Mr. Mosser's account over to Mrs. Kirkley, and she began receiving a monthly retirement benefit check in October 1995.2 Mr. Mosser's Health Insurance

   Subsidy was terminated effective July 1995, and the net monthly benefit received by Mrs. Kirkley as Mr. Mosser's beneficiary did not include a Health Insurance Subsidy payment.

9. It is the Division's practice to send each retiree added to the system a "retiree packet" that includes, among other things, an application for the Health Insurance Subsidy and an explanation of the subsidy, as well as a booklet containing an explanation of all of the benefits available to retirees and beneficiaries under the Florida Retirement System. The process of sending out the retiree packets is automated, so that a packet is sent to every retiree and beneficiary when they are first entered into the system. Pursuant to the Division's regular practice, Mrs. Kirkley would have been sent the retiree packet in October 1995, when she was added to the system as

   Mr. Mosser's beneficiary.

   
   

10. The Division also sends retirees and beneficiaries an annual newsletter, and the Health Insurance Subsidy was discussed in the 1995 and 1996 newsletters.

11. Mrs. Kirkley received a Statement of Retirement Benefit Payments, as Mr. Mosser's beneficiary, each July, December, and January. This statement includes a separate entry for the Health Insurance Subsidy, with the amount of the subsidy noted; Mrs. Kirkley would have been aware of this entry because the Statement of Retirement Benefit Payments that she had been receiving on her own account would have shown an amount paid as her Health Insurance Subsidy. Mrs. Kirkley received her first statement in December 1995, and it would have been apparent from the statement that no amount was included for the Health Insurance Subsidy.

12. Mrs. Kirkley does not recall having any direct contact with the Division between the time she submitted her application for the retirement benefit as Mr. Mosser's beneficiary and late September 1997, when she called the Division to request that the monthly check be electronically deposited in her bank account. During the conversation in September 1997, the Division's representative advised Mrs. Kirkley that she was entitled to receive a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse, in addition to the monthly retirement benefit she received as Mr. Mosser's beneficiary. The representative told Mrs. Kirkley that she would send her an application for the Health Insurance Subsidy, which the representative did in September 1997.

13. Mrs. Kirkley completed the application she received from the Division and sent it to the Division with a cover letter dated October 17, 1997. The application required certification of health insurance coverage, which Mrs. Kirkley satisfied by attaching a copy of her Medicare Health Insurance card.

14. Mrs. Kirkley did not hear anything from the Division for quite a long time. She contacted the Division and was told that they had not received her application for the Health Insurance Subsidy. The Division sent her another application form, which she completed and sent to the Division in January 1998, and she began receiving a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse; she also received retroactive benefits effective July 1997 through December 1997, a period of six months prior to January 1998.

15. The Division eventually located Mrs. Kirkley's October 1997 application, and it advised her in a letter dated April 6, 1998, that she would receive retroactive Health Insurance Subsidy payments for an additional three months, moving the effective date of her entitlement to the benefits back to April 1997.

16. Including the retroactive benefits she received, Mrs. Kirkley has been receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse since April 1997. She also had

    the benefit of Mr. Mosser's May and June 1995 Health Insurance Subsidy, which were paid by the Division because it was not aware that Mr. Mosser was deceased.

17. Mrs. Kirkley seeks to recover an additional $1890.00 in retroactive Health Insurance Subsidy payments as Mr. Mosser's surviving spouse, which is the difference between the total Health Insurance Subsidy payments she has received and the total Health Insurance Subsidy payments she would have received had the benefits been paid to her retroactive to Mr. Mosser's death (21 months x $90.00 per month = $1890.00).

    Summary

    
    

18. The evidence presented by Mrs. Kirkley is insufficient to establish her entitlement to retroactive Health Insurance Subsidy payments from July 1995 to March 1997. It is uncontroverted that she submitted her application for the Health Insurance Subsidy with her certification of health insurance coverage in October 1997 and that the Division paid retroactive Health Insurance Subsidy payments for the six months prior to the date it received the application.

19. In addition, Mrs. Kirkley has not presented sufficient evidence to establish that the Division should be required to pay her the additional retroactive Health Insurance Subsidy payments because it failed to send her an application until September 1997. The Division did not make any specific

    representations to her regarding her entitlement to the Health Insurance Subsidy payments until September 1997, and she failed to establish by the greater weight of the credible evidence that she did not receive any general information from the Division that included information regarding the Health Insurance Subsidy. In addition, Mrs. Kirkley knew or should have known in December 1995 that she was not receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse, when she received her first statement detailing the components of her gross monthly benefit as Mr. Mosser's beneficiary, and she could have made inquiry of the Division at that time.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).

21. As the person seeking to establish her entitlement to benefits, Mrs. Kirkley has the burden of proof by a preponderance of the evidence. See Section 120.57(1)(j), Florida Statutes (1999); Department of Transportation v. J.W.C., Co, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981)(The party asserting the affirmative of an issue has the burden of proof.)

22. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law

    Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v.

    Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

    quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

    
    

23. In pertinent part, Section 112.363, Florida Statutes (1995), provides for the payment of a Health Insurance Subsidy as follows:

    1. PURPOSE OF SECTION.--The purpose of this section is to provide a monthly subsidy payment to retired members of any state- administered retirement system in order to assist such retired members in paying the costs of health insurance.

    2. ELIGIBILITY FOR RETIREE HEALTH INSURANCE SUBSIDY.--A person who is retired under a state-administered retirement system, or a beneficiary who is a spouse or financial dependent entitled to receive benefits under a state-administered retirement system, is eligible for health insurance subsidy payments provided under this section; Payment of the

       retiree health insurance subsidy shall be made only after coverage for health insurance for the retiree or beneficiary has been certified in writing to the Division of Retirement. . . .

       
       

       * * *

       
       

       (7) ADMINISTRATION OF SYSTEM.--The Division of Retirement may adopt such rules and regulations as are necessary for the effective and efficient administration of this section. The cost of administration shall be appropriated from the trust fund.

       
       

       (Emphasis added.)

       
       

24. In 1995, Rule 60S-4.020, Florida Administrative Code, applied to the administration of the Retiree Health Insurance Subsidy and provided in pertinent part:

    (2) Health insurance coverage for the retiree must be certified in accordance with procedures established by the Division. If the Division receives such certification within 6 months after retirement benefits commence, the Retiree Health Insurance Subsidy shall be paid retroactive to the effective retirement date. However, if the Division receives the certification of insurance coverage 6 or more months after retirement benefits commence, the member will be eligible to receive retroactive payments for a maximum of 6 months only.[3]

    
    

    (Emphasis added.)

    
    

25. Based on the findings of fact herein, Mrs. Kirkley is not entitled to retroactive Health Insurance Subsidy payments for the period extending from July 1995 through March 1997. The uncontroverted evidence establishes that the Division received Mrs. Kirkley's application for the Health Insurance Subsidy as Mr. Mosser's beneficiary, which contained the certification of her health care coverage, in October 1997. Consistent with the provisions of Rule 60S-4.020, Florida Administrative Code,

    Mrs. Kirkley received retroactive benefits for the maximum six months.

26. In support of her claim, Mrs. Kirkley relies primarily on the argument that the Division had a duty to inform her

    specifically that she needed to apply for the Health Insurance Subsidy and that, because no one at the Division did so, she was entitled to receive retroactive Health Insurance Subsidy payments as of July 1995, the date she became eligible to receive benefits as Mr. Mosser's beneficiary. She has cited no statute imposing such a duty on the Division but, rather, seems to base her claim on something akin to the doctrine of equitable estoppel.4

27. The elements that must be established in order for the doctrine of equitable estoppel to be applied against a governmental agency are set forth in Council Brothers, Inc., v. City of Tallahassee, 634 So. 2d 264, 266 (Fla. 1st DCA 1994):

    The elements which must be present for application of estoppel are: "(1) a representation as to a material fact that is contrary to a later-asserted position;

    (2) reliance on that representation; and (3) 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, 400 (Fla. 1981). See also Dolphin Outdoor Advertising v. Department of Transportation, 582 So. 2d 709, 710 (Fla. 1st DCA 1991); Harris v. State, Department of Administration, Division of Employees' Insurance, 577 So. 2d 1363, 1366 (Fla. 1st DCA 1991; Warren v. Department of Administration, 554 So. 2d 568 (Fla. 5th DCA 1990). As a general rule, estoppel will not apply to mistaken statements of the law, see Anderson, 403 So. 2d at 400, but may be applied to erroneous representations of fact. Dolphin Outdoor Advertising, 582 So. 2d at 711; Harris, 577 So. 2d at 1366;

    Warren, 554 So. 2d at 571; City of Coral Springs v. Broward County, 387 So. 2d 389,

    390 (Fla. 4th DCA 1980).

    
    

    * * *

    
    

    One seeking to invoke the doctrine of estoppel against the government first must establish the usual elements of estoppel, and then must demonstrate the existence of affirmative conduct by the government which goes beyond mere negligence, must show that the governmental conduct will cause serious injustice, and must show that the application of estoppel will not unduly harm the public interest. Alachua County v.

    Cheshire, 603 So. 2d 1334, 1337 (Fla. 1st

    DCA 1992).

    
    

28. Based on the findings of fact herein, Mrs. Kirkley has failed to prove by a preponderance of the evidence the fundamental element that must be proven in order to invoke the doctrine of equitable estoppel, that the Division made a representation of fact to her that it later contradicted or that the Division committed an affirmative act going beyond mere negligence which resulted in her failure to timely apply for the Health Insurance Subsidy as Mr. Mosser's surviving spouse. Rather, the Division provided Mrs. Kirkley with information regarding the Health Insurance Subsidy in the retiree packet, which also included an application for the Health Insurance Subsidy, and in the newsletters routinely sent to retirees and beneficiaries.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order dismissing the Petition for Review of Final Agency Action filed by

Mary J. Mosser, now known as Mary J. Kirkley.

DONE AND ENTERED this 20th day of November, 2001, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2001.

ENDNOTES

1/ The contents of this finding of fact are included herein pursuant to the stipulation of the parties at the hearing.

2/ Although no evidence was presented on this point, it is assumed that the Division paid the retirement benefit retroactive to July 1995, since Mr. Mosser's monthly check was duly issued in May and June 1995.

3/ Section 112.363(9), Florida Statutes, was amended in 1998 to provide as follows:

. . . Subsidy payments shall be payable under the retiree health insurance subsidy

program only to participants in the program or their beneficiaries, beginning with the month the division receives certification of coverage for health insurance for the eligible retiree or beneficiary. If the division receives such certification at any time during the 6 months after retirement benefits commence, the retiree health insurance subsidy shall be paid retroactive to the effective retirement date. If, however, the division receives such certification 7 or more months after commencement of benefits, the retroactive retiree health insurance subsidy payment will cover a maximum of 6 months. . . .

4/ The doctrine of equitable tolling would not be applicable in this case to excuse Mrs. Kirkley's late filing of the application for the Health Insurance Subsidy and entitle her to receive the Health Insurance Subsidy retroactive to July 1995.

In considering the argument that equitable tolling should apply to extend the time for filing an application for a certificate of need, the court in Vantage Healthcare Corp. v. Agency for Health Care Administration, 687 So. 2d 306, 307 (Fla. 1st DCA 1997) stated:

In every case cited by Manatee in which the doctrine of equitable tolling has been applied, a party was attempting through judicial or quasi-judicial proceedings to assert or protect a claim or right. "The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period." Machules v. Department of Administration, 523 So. 2d 1132, 1133 (Fla. 1988)(emphasis added).

Machules considered the denial of an appeal as untimely. Similarly, in Stewart v.

Department of Corrections, 561 So. 2d 15 (Fla. 4th DCA 1990), the court invoked the doctrine of equitable tolling and reversed dismissal of a notice of appeal which was filed one day late. Phillip v. University of Florida, 680 So. 2d 508 (Fla. 1st DCA 1996), was an appeal from the denial of a

120.57 hearing on the grounds that the petition had been untimely filed. In Castillo v. Department of Administration, 593 So. 2d 1116 (Fla. 2d DCA 1992), the court reversed and remanded the denial of a petition for an administrative hearing. Hamilton County Board of County Commissioners v. Department of Environmental Regulation, 587 So. 2d 1378 (Fla. 1st DCA 1991) also applied the doctrine in the context of actual litigation, as did Department of Environmental Regulation v. Puckett Oil Co., Inc., 577 So. 2d 988 (Fla. 1st DCA 1991). The certificate of need application process is not comparable to such judicial or quasi-judicial proceedings. We have found no authority extending the doctrine of equitable tolling to facts such as in the present case.

COPIES FURNISHED:

Robert M. Sturrup, Esquire Robert M. Sturrup, P.A.

2601 East Oakland Park Boulevard Suite 503

Fort Lauderdale, Florida 33306

Robert B. Button, Esquire Division of Retirement 2639 North Monroe Street

Cedars Executive Center, Building C Tallahassee, Florida 32399-1560

Erin Sjostrom, Director Division of Retirement 2639 North Monroe Street

Cedars Executive Center, Building C Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel Division of Retirement

2639 North Monroe Street

Cedars Executive Center, Building C Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 01-002648

Orders for Case No: 01-002648