Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Gainesville, Florida, on January 26, 2007. The appearances were as follows:
For Respondent: Sonja P. Mathews, Esquire
Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260
The issue to be resolved in this proceeding concerns whether the Petitioner Donna Danzis is a retired state employee
and is entitled to reinstatement of her policy of State Life Insurance Plan.
This cause arose upon the Petitioner, Donna Danzis, filing a petition or request for hearing to contest the Respondent Agency's denial of her request to restore her coverage under the State Life Insurance Plan, after she left employment and, ultimately entered disability retirement. In a letter directed to and received by the Respondent Agency, the Department of Management Services, Division of State Group Insurance, the Petitioner requested restoration of her State Life Insurance Plan Coverage. When that request was denied the Petitioner asked for a formal proceeding and the matter was ultimately transferred to the Division of Administrative Hearings and the undersigned Administrative Law Judge for adjudication.
Section 110.123(3)(b), Florida Statutes (2006), provides that the Department of Management Services, through its Division of State Group Insurance (DSGI) is part of the State Employee Benefits Insurance Program may offer group life insurance plans to state employees. That statutory section provides that DSGI is responsible for administration of the State Group Insurance Program and is authorized to adopt rules to perform that responsibility. It has final order authority in determining issues concerning the existence of coverage or covered benefits.
It has developed a State Life Insurance Plan (the Plan) that is offered to employees and retirees. Florida Administrative Rule Chapter 60P-3 governs that plan and contains the terms and conditions for participation in the life insurance plan.
Pursuant to this Rule Chapter, employees who terminate employment with the state are not eligible to continue participating in the plan. Retirees who desire to participate in the Plan, must make a written election with 31 days of their last date of employment, contemporaneously paying the required first month's premium for first month's coverage. The Agency took the position that the Petitioner did not do either of those requirements and therefore her participation in the plan was cancelled.
The Petitioner terminated state employment on October 28, 2005, and in December 2005 was determined to be eligible for disability retirement.
The cause came on for hearing as noticed. During the course of the hearing the Petitioner had Exhibits A and B admitted into evidence and the Respondent offered and had admitted into evidence Exhibits 1, 3 through 11, and 14.
Additionally, official recognition was taken of Florida Administrative Code Rule 60P-3.
No transcript was ordered but the parties were given an opportunity which they exercised, to file proposed recommended
orders. Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
The Petitioner was an employee of the Florida Department of Children and Family Services (DCF) through October 28, 2005. On October 28, 2005, she voluntarily terminated her employment. At the time she terminated employment she had been covered under the Plan. The Plan is made available to state employees and retirees through the DSGI, in accordance with Section 110.123, Florida Statutes (2006). The terms and conditions of employee participation in the plan are provided for in Florida Administrative Code Rule Chapter 60P-3.
The Petitioner was a cancer patient at times pertinent hereto and that may have played a role in her decision to terminate her employment. In any event, her employment termination was voluntary and occurred during a time apparently when she was undergoing chemical therapy concerning her cancer issues. Prior to the time she terminated her employment on October 28, 2005, the Petitioner did not discuss her plans to retire with DCF Human Resources Personnel. She had, however, apparently applied for disability retirement, although that disability retirement status had not yet been determined or granted at the time she terminated her employment.
After termination of employment, on or about
November 24, 2005, the Petitioner contacted DCF personnel office and spoke with Mr. Harvey Whitesides. During that conversation, Mr. Whitesides determined that the Petitioner had had deductions from her paycheck to cover premiums for three types of insurance coverage: state health insurance, a group life insurance plan, as well as state security insurance. The later type of insurance is an optional supplemental life insurance that is not a part of the Plan.
In that November 24, 2005, conversation with
Mr. Whitesides, the Petitioner told him that she had terminated her employment with the state but did not inform him that she had applied for disability retirement. During their conversation she told Mr. Whitesides that she wanted refunds that she was entitled to from the state health insurance and group life insurance plans.
Mr. Whitesides was supervisor of payroll for DCF and its predecessor agency from 1993 through 2002. In that position his duties included management of the benefit section and retirement operations within the DCF. While her performed his duties as supervisor he would commonly assist employees in their preparation of the forms necessary to affect retirement.
Mr. Whitesides retired in 2003, but returned to DCF as an employee in March 2004. Beginning in June 2004, he assumed the duties of DCF personnel services specialist.
In July 2005, his position and duties were transferred to the Agency for Persons With Disabilities.
Since returning to state employment in March 2004,
Mr. Whitesides duties have been substantially the same as those he performed from 1993 through 2002. These included the processing of benefits and retirement requests submitted by employees. In the course of performing those operations he has always assisted employees in the completion of the form required to apply for retirement.
Since 1993, Mr. Whitesides has used a "continuation/termination form," for retiring employees who upon retirement wished to continue their state group life insurance. Beginning in March 2004 when he returned to state employment, Mr. Whitesides had access to and used that same continuation/termination form.
He did not offer the form to the Petitioner during their conversation on November 24, 2004, however, because the Petitioner did not then inform him that she had applied for retirement.
Mr. Whitesides did not learn that the Petitioner had applied for retirement until he received a letter from the
Division of Retirement (DMS) dated December 14, 2005, which asked that the DCF provide information and data necessary to calculate Ms. Danzis retirement benefits. Mr. Whitesides provided the date requested by DMS, including the "Florida Retirement System Pension Plan Salary Certification." Prior to the receipt of the letter dated December 14, 2005, the Petitioner had not informed anyone in the DCF personnel office that she had applied for disability retirement.
Florida Administrative Code Rule 60P-3.014 requires that an employee who retires and is covered under the life insurance plan must elect one of the following options: (1) submit a request to continue coverage during retirement accompanied by a personal check or money order for one full month's premium, which must be received by the employee's former agency and forwarded with the original application no later than
31 calendar days after the last day of employment; or (2) that the retiring employee must submit a request to terminate coverage under the life insurance plan no later than 31 calendar days after the employee's last day of employment.
That rule goes on to provide that an employee who applies for disability retirement and has not received approval of that prior to his last day of employment but who is covered under the life insurance plan on that last day of employment has the option to continue coverage in the life plan pending such
retirement disability approval or rejection by submitting a request to continue coverage in accordance with Florida Administrative Code Rule 60P-3.014(1)(a) and by paying the full premium for each month's coverage by personal check or money order to his or her former personnel office.
Concerning employees or retirees off the payroll, if it is determined that none of the required contribution by the end of the coverage month the coverage will be cancelled and the retirees coverage will be terminated effective the first day of that month. A retired employee whose coverage is terminated in accordance with subsection (1) or (2) of Rule 60P-3.010 may not re-enter the Plan.
The Petitioner did not submit a continuation/termination form within 31 days of the date of her termination of employment stating that she wished to continue her participation in the plan, and provide the other information required by Florida Administrative Code Rule 60P-3.014(1)(a). The Petitioner did not submit a month's premium for life insurance within 31 days after the last date of her employment. The only notice that Ms. Danzis gave, or attempted to give, was notice that she was voluntarily terminating her employment and that her last date of work would be October 28, 2005. Because she did not elect to continue her participation in the life insurance plan through the proper procedure and filing, the
Agency canceled her life insurance, thus generating the subject dispute.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).
Through the promulgation of rules, DSGI provided the required notice of the terms and conditions of participation in the Plan. Florida Administrative Code Rule Chapter 60P-3 applies to the Plan. Rule 60P-3.004, concerning eligibility, provides that participation in a life insurance plan is open to both employees and retirees. A terminated employee, however, is not eligible to participate in the Plan.
An employee who is retiring may elect to continue participation in the life insurance plan by complying with the requirements with Florida Administrative Code Rule 60P-3.014. Therefore, within 31 days of her last date of employment, in order to exercise her option as a retired employee to continue participation in the life insurance plan, the Petitioner had to have submitted to her agency the "continuation/termination form." If on her last day of employment, the Petitioner's retirement application was pending but not approved, she could have continued coverage in the life plan pending that approval or rejection of her disability retirement request by submitting
a request to continue coverage in accordance with paragraph Florida Administrative Code Rule 60P-3.014(1)(a) and paying the full premium for each month of coverage by personal check or money order to a person at the personnel office. See Fla.
Admin. Code R. 60P-3.009 and 60P-3.014(2)(b).
Participation in the plan is available to active employees and retirees who properly elect to continue participation in the plan upon retirement. See Fla. Admin. Code
R. 60P-3.004. The Petitioner contends that her participation in the plan should be reinstated because she informed the personnel officer for her agency that she wanted to cancel all of her insurance except for her life insurance. According to the Petitioner, the personnel officer did not follow her instructions, therefore causing her to lose her coverage. The Respondent denies that allegation and rather contends that the Petitioner failed to inform her Agency's personnel officers of her impending application for retirement and failed to make the election required by the rules of the DSGI, that would have allowed her to continue the state life plan upon her retirement.
When the Petitioner voluntarily terminated employment on October 28, 2005, Ms. Vickie Mixon and Mr. Whitesides were both experienced human resources officers employed by DCF.
Ms. Mixon had 21 years' experience and was the Operations and Management Consultant II for that Agency. Mr. Whitesides was
also very experienced and knowledgeable as personnel officer and has substantial experience assisting employees with retirement questions and since 1993 has regularly assisted employees in completing and processing retirement applications.
When Ms. Danzis spoke with Mr. Whitesides on November 24, 2005, she did not inform him that she had applied for retirement and wished to continue her state-sponsored life insurance. She only informed him that she had terminated employment. A person who simply terminates employment is not
eligible to continue in the state sponsored life insurance plan.
As a former employee whose application for disability retirement was pending, the Petitioner could have continued her life insurance plan by submitting the continuation/termination form referenced above within 31 days, or providing the information required by Florida Administrative Code Rule 60P- 3.014(1)(a) and delivering it to her Agency's personnel office with the premium of a full month of coverage. The Petitioner, however, did neither.
Mr. Whitesides established in his testimony that since assuming a supervisory personnel role with the Department in 1993 that he has routinely processed several retirement applications per week and more than that prior to 2003. For many years DCF used the "continuation/termination form" so that employees who were retiring could make their election regarding
participation in the plan upon their retirement. The testimony of Mr. Whitesides and Ms. Mixon establishes that this was the Agency's regular policy and practice prior to 2004 and up through the present time. Neither Ms. Mixon nor Mr. Whitsides was informed by Ms. Danzis or any other person that she had planned to retire.
At the time Ms. Danzis voluntarily terminated her employment, DCF was undergoing a reorganization whereby some of its functions and employment positions were "privatized" to a private corporation. Ms. Danzis was going to be affected by that transition as of November 14, 2005. The plan was to terminate the affected employees as of the effective date of the transition to the privatization program, which was November 14, 2005. Not knowing that Ms. Danzis had voluntarily terminated her employment on October 28, 2005, the records of the Agency show that she was part of the transition process and remained on the payroll until November 14, 2005.
Ms. Danzis testified about two letters she claimed she delivered to her former supervisor one of which, the letter of October 18, 2004, (Exhibit B) was apparently her resignation letter declining a job offer due to poor health (the job that would be available to her under privatization event).
Ms. Danzis testimony is that she delivered the letter; however, during her deposition she testified that she was ill and in the
hospital and that her husband delivered the letter. Regardless of whether she or her husband delivered them, and regardless of whether or not they were delivered to a personnel officer or her former supervisor, neither letter mentioned that Ms. Danzis was retiring nor that she wished to have her life insurance remain in effect. They did not settle the question concerning whether on November 24, 2005, Ms. Danzis actually informed
Mr. Whitesides that she wanted to continue her life insurance, and, if she did, whether she provided sufficient information to indicate that although she had terminated employment that she was still eligible to continue life insurance participation because her retirement application was pending.
Mr. Whitesides testified that he did not recognize Ms. Danzis and that to the best of his recollection any conversation on November 24, 2005, would have been by telephone. Ms. Danzis maintains that she went to the personnel office and met with him and that he was the only person she recognized from the DCF personnel office. At another time during the course of the hearing, however, Ms. Danzis recalled that she and her husband had also met Ms. Mixon of the personnel office.
Respondent's Exhibit six in evidence is a computer printout titled, "employee last payment detail," which shows that it was printed on November 24, 2004. There are hand-
written notes on that document made by Mr. Whitesides, including the following:
. . .wants refund of 2. Insurance premiums other deductions OK.
Mr. Whitesides established in his testimony the number 2 in superscript shows that two insurances were carried by Ms. Danzis that were included in the state plan, her health insurance and her life insurance. According to Mr. Whitesides, Ms Danzis also had a deduction for a third insurance policy indicated by "code 288." That third insurance policy was with "state securities," a private insurance company offering supplemental policies. Any refund as to that policy would have come directly from that company.
Mr. Whitesides established that those hand-written notes also show that during the course of the conversation he learned that Ms. Danzis had terminated her employment as of October 28, 2004, but had been paid trough November 14, 2005, the above-mentioned transition date. He testified that the notes do not indicate that there were any discussions of Ms. Danzis' pending application for retirement, nor does he have any independent recollection of any such discussion.
Ms. Danzis' evidence in support of her case consist of her testimony and the letters. They contained no reference to her retirement or pending retirement and therefore are of no
material evidential value in this case. Her testimony regarding her conversation with Mr. Whitesides does not outweigh the testimony of Mr. Whitesides and Ms. Mixon, taken together, to the effect that neither of them knew of Ms. Danzis' retirement application or pending retirement until receipt of the letter dated December 14, 2004, indicating that her retirement application had been approved.
In order to prevail in this case, Ms. Danzis must prove two things: (1) that she informed Mr. Whitesides (or another relevant personnel officer) that she wanted to continue her life insurance policy coverage; and (2) that she advised him that she was eligible to continue participation in that coverage because she had a retirement application pending. She has not established by preponderant evidence that she informed
Mr. Whitesides, or anyone else with his authority, that her disability retirement application was pending. There is no evidence to show that she followed the dictates of the above- referenced rule and, within 31 days of termination of employment, informed the relevant personnel officer that she wished to continue her life insurance plan coverage, nor that she even paid the relevant premium.
Moreover, Ms. Danzis had legal notice of what was necessary if she, as a retiree, wanted to continue participation in the Plan. She does not contend that she was misled, but
rather that she was not told that she needed to provide the subject form and submit the premium payment for the life insurance coverage. Promulgation of rules on a subject matter constitutes public notice on that subject matter and fulfills the obligation of the state to inform state employees of their rights and obligations. See Town of Lauderdale-by-the-Sea v.
Meretsky, 773 So. 2d 1245, 1249 (Fla. 4th DCA 2000).
When, as in the present case, a benefit is provided by the government, it is the responsibility of those benefiting from that privilege to comply with the statutes and rules promulgated pursuant to it. Department of Revenue v. Anderson,
403 So. 2d at 400. Through the promulgation of rules, DSGI has provided the required notice of the terms and conditions of participation in the Plan. Florida Administrative Code Rule Chapter 60P-3 applies to the Plan and Florida Administrative Code Rule 60P-3.004 concerning eligibility provides for participation in the Plan for employees and retirees. A retiring employee may elect to continue participation in the life insurance plan by complying with the requirements for participation set forth in Florida Administrative Code Rule 60P-
3.014. Just as one is charged with knowledge of an existing statute, so an employee is charged with knowledge of the promulgated administrative rules regarding employee benefits. McLaughlin v. State of Florida, Department of Natural Resources,
526 So. 2d 934, 939 (Fla. 1st DCA 1988); Venero v. City of Tampa, Florida, 830 F. Supp. 1457, 1460 (Mid. Dist. Fla. 1993); see also Morey's Lounge, Inc., v. State, Department of Business and Professional Regulation, 673 So. 2d 538 (Fla. 4th DCA 1996). The above-referenced rules informed the Petitioner what required if, upon retirement, she wished to continue participation in the state life insurance plan. Hall v. State, 823 So. 2d 757, 764 (Fla. 2002). The Petitioner in the instant situation simply did not comply with that rule.
Unfortunately, an administrative proceeding such as this there is no equity jurisdiction on the part of the Agency or the Division to effect a fair and just result predicated upon the peculiar facts of a case. Rather, agencies must follow their own existing rules. Cleveland Clinic Florida Hospital v.
Agency for Health Care Administration, 679 So. 2d 1237, 1242 (Fla. 1st DCA 1996), rev. denied subnom. South Broward Hospital v. Cleveland Clinic Florida Hospital, 695 So. 2d 701 (1997).
It is well-established that the burden of proof is on the party asserting the affirmative of the issue in an administrative proceeding. See Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). The Petitioner bears the burden of proving her case by a preponderance of the evidence. For the reasons found and concluded above, based upon the weighing of the evidence, the
