STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICKA L. LEDBETTER,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE GROUP INSURANCE,

Respondent.

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) Case No. 07-1296

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on May 22, 2007, in Tallahassee, Florida, before Ella Jane

1. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Ericka L. Ledbetter, pro se

   739 South Shelfer Street Quincy, Florida 32351

   
   

   For Respondent: Sonja P. Matthews, Esquire

   Department of Management Services 4050 Esplanade Way, Suite 160

   Tallahassee, Florida 32399-0950

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether Petitioner timely notified Respondent, Division of State Group Insurance of a "qualifying status change" (QSC) event, so as to allow Petitioner to cancel her participation in

   the State Group Health Insurance Program during the Plan Year- 2006. Petitioner seeks a refund of amounts deducted/paid because her insurance was continued.

   PRELIMINARY STATEMENT

   
   

   The Program, as defined in Section 110.123(2)(k), Florida Statutes, is a benefit available to State of Florida officers, employees, and their dependents. The Program includes various health plans. Petitioner, a state employee, is a participant in a state-offered health care plan.

   The terms and conditions of participation of the Program are subject to Florida Administrative Code Chapter 60P, which the Department of Management Services (DMS), parent agency to the Division of State Group Insurance (DSGI), has promulgated, pursuant to rule-making authority contained in Section 110.123(5), Florida Statutes.

   By letter dated October 13, 2006, the Director of DSGI notified Petitioner of the denial of her requested retroactive cancellation of enrollment in the State Group Health Insurance Plan.

   Petitioner timely requested a Section 120.57(2) hearing, and upon subsequently determining that there were facts in dispute, the Agency referred the case to the Division of Administrative Hearings on or about March 20, 2007, for this proceeding in accord with Section 120.57(1), Florida Statutes.

   On March 28, 2007, a Notice of Hearing for May 22, 2007, was entered and mailed, together with an Order of Pre-hearing Instructions. On May 5, 2007, Respondent complied with the Order. Petitioner did not.

   On May 22, 2007, when the disputed-fact hearing was convened, Petitioner did not appear. Petitioner was reached by telephone from the courtroom. Respondent agreed that Petitioner could participate by telephone, including but not limited to being sworn to testify by the undersigned via telephone, without benefit of an officer empowered to administer oath or affirmation being present at Petitioner's location.

   Petitioner testified on her own behalf, but offered no exhibits. Respondent presented the oral testimony of Sandie Wade and Keith Young and had 11 exhibits admitted in evidence.

   No transcript was provided.

   
   

   Respondent timely filed its Proposed Recommended Order on June 8, 2007, which has been considered. Despite a May 23, 2007, Post-hearing Order describing how to prepare a proposed recommended order, Petitioner filed no proposal.

   FINDINGS OF FACT

   
   

   1. Petitioner has been a covered participant in the Program, authorized by Section 110.123, Florida Statutes, at all times material.

   2. As provided in Section 110.123(3)(c), Florida Statutes, Respondent DMS, through its administrative entity, DSGI, is responsible for contract management and day-to-day administration of the Program. DMS has contracted with Convergys, Inc., to provide human resources management services including assisting in the administration of the Program. Convergys performs these tasks in part through an on-line system known as "People First." However, as provided in Section 110.123(5), Florida Statutes, final decisions concerning the existence of coverage or covered benefits under the Program are not delegated, or deemed to have been delegated, by DMS.

   3. Section 110.161, Florida Statutes, requires DSGI, as the responsible administrative entity, to administer the Program consistent with Section 125 of the Internal Revenue Code, so that participants will obtain the pre-tax advantages provided by Section 125.

   4. One of the federal requirements to maintain the pre-tax status is that the plan's sponsor (e.g., the State of Florida) administer the plans and apply each plan's rules in a manner that does not discriminate and that treats all participants equally.

   5. In this case, Petitioner was enrolled in the Health Program Plan Year 2006, i.e. from January 1, 2006, through December 31, 2006.

   6. Allowing a Plan member to retroactively cancel her participation during a Plan Year without having properly reported a QSC could put the entire pre-tax program in jeopardy. A QSC is a change in status as listed in the Plan which would allow an employee to cancel or otherwise change participation in the Plan during the Plan Year if requested by the employee within 31 days of the change in status.

   7. Converting from full-time to part-time state employment is a QSC event.

   8. On April 21, 2006, Petitioner converted from full-time employee status to part-time employee status.

   9. Therefore, the QSC event in this case occurred on April 21, 2006, when Petitioner went from being a full-time to a part-time employee.

   10. However, in order to effect a change in health insurance coverage, Petitioner was required to request a change in health insurance coverage no later than May 22, 2006.

   11. To request a change in health insurance coverage, Petitioner would have needed to contact Convergys in a timely manner, i.e. within 31 days of April 21, 2006.

   12. For People First, Convergys maintains a tracking system known as "Siebel," which tracks written correspondence to or from state employees and notes telephone calls between state employees and Convergys associates. Standard business procedure

       for Convergys is that the telephone logs are not verbatim notations of the conversations, but are a summary of those conversations, including a description of the reason for the call and the action taken by any Convergys associate that took the call. The Convergys policy is that all calls are to be notated. All service associates are trained to note all calls. Convergys employees are trained to make the call notes during the telephone conversation or soon thereafter. A notation is to be made by the Convergys employee in the Siebel system, and a case is opened when the service representative cannot assist the caller or when further action is required. The case notes are also to be recorded in the system.

   13. None of the People First, DGS/DGSI, or Convergys records reflect any contact by Petitioner within the 31 days following April 21, 2006, although they reflect several later contacts concerning her complaint that her coverage was not timely cancelled.

   14. Petitioner testified that she used her sister's cell phone to telephone People First "after two or three weeks" and that she discussed cancellation of her participation in the state insurance program and flirted with the Black male who answered the phone, but who seemed not to have much experience in the cancellation process. Petitioner was not able to provide the name or position of the person with whom she allegedly spoke

       or the date or time of her telephone call. The fact that Petitioner testified that she knew that she "had to around the middle or so" of the month to request her change of coverage, illustrates Petitioner's rather loose interpretation of when this alleged call occurred. Petitioner presented no witness or documentation to corroborate her testimony that she had received oral assurances during that phone call to the effect that the change she requested had been completed through People First.

       Petitioner's representation that the telephone company could not get the phone records of this telephone call due to the passage of time is not credible.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 112.3173(5) and 120.57(1), Florida Statutes.

   16. In this proceeding, Petitioner bore the duty to go forward and the burden of proof, by a preponderance of the evidence, to show (1) that she was entitled to change her participation in the State Health Plan, and (2) that she made that change within the time allotted by the DGSI rules. See § 120.57(1)(f), and Department of Transportation v. J.W.C. Co.

       Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   17. The general provisions and definitions that are applicable to the Pre-tax Program are contained in Florida Administrative Code Rule 60P-6, which provides in pertinent part, as follows:

       60P-6.006 Definitions

       
       

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       1. "Period of coverage" means the Plan Year or that portion of the Plan Year during which coverage of benefits under the Plan is available to and elected by the participant.

          
          

       2. "Program" means the Florida Flexible Benefits Program established pursuant to Section 110.161, Florida Statutes.

          
          

       3. "Plan year" means a 12-month period beginning January 1 and ending December 31.

          
          

       4. "Salary reduction agreement" means an agreement by and between the State and the employee, in which the employee elects to participate in the Program.

          
          

       5. "Qualifying status change (QSC) event" or "QSC event" means the change in employment status, for subscriber or spouse, family status or significant change in health coverage of the employee or spouse attributable to the spouse's employment.

          
          

   18. Provisions of the Florida Administrative Code relevant to enrollment and changes in coverage read:

60P-2.002 Enrollment.

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(7) An employee who applies for enrollment and is enrolled in the Health Program shall automatically be enrolled in the Pretax

Premium Plan of the Flexible Benefits Program unless the employee submits a signed rejection which shall include the employee's name, social security number, address, agency and a statement that this decision cannot be changed until the next open enrollment period.

Rule 60P-2.003 Changes in Coverage.

(1) An employee enrolled in the Health Program may apply for a change to family coverage or individual coverage within thirty-one (31) calendar days of a QSC event if the change is consistent with the event or during the open enrollment period.

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1. All applications for coverage changes must be approved by the Department, subject to the following:

   1. The Department shall approve a coverage change if the completed application is submitted to the employing agency within thirty-one (31) calendar days of and is consistent with the QSC event.

   2. Documentation substantiating a QSC event is as follows:

* * *

4. If terminating coverage, proof of family status change or proof of employment change is required.

19. Rules 60P-6.0063, 60P-6.0065, and 60P-6.0068 also provide, in pertinent part, as follows:

60P-6.0063 Enrollment.

1. Those employees participating in the Health Program or Life Plan through premium contributions shall be enrolled in the Pretax Premium Plan in accordance with subsection 60P-2.002(7), F.A.C.

2. Those employees participating in a supplemental insurance plan shall be enrolled in the Pretax Premium Plan.

   
   

3. Eligible employees may elect to enroll in the Reimbursement Plan within sixty (60) calendar days of employment, within thirty- one (31) calendar days of a QSC event, or during open enrollment by completing an application in accordance with subsection 60P-2.002(2). F.A.C. Such application shall include an annual election amount for either or both reimbursement account(s).

60P-6.0065 Coverage Period. The coverage period shall be the Plan Year. However, with respect to the Pretax Premium Plan, when an employee becomes eligible to participate during a Plan Year, the coverage period, in the absence of the submission of a written waiver, will begin on the first day of the first month which follows sixty

(60) calendar days after enrollment into the State Group Insurance Program and continues throughout the Plan Year. With respect to the Reimbursement Plan, the coverage period shall be the Plan Year. However, when an employee becomes eligible to participate during a Plan Year, an adjusted coverage period will be from the date that the completed application is received at the Department or the date of the occurrence of the qualifying event, whichever is later, through the last day of that Plan Year, provided that required contributions are made.

60P-6.0068 Change in Participation.

1. A participant's salary reduction amount shall be increased or decreased automatically to correspond to any changes in employee contributions where, during the Plan Year, there has been a change in the cost of the premium under the State Health Insurance Program.

   
   

2. An election made under the Pretax Premium Plan shall be irrevocable during the Plan Year except when a participant experiences a QSC event.

   
   

3. A participant may revoke an existing election and make a new benefit election for the remaining period of coverage when a QSC event is or has been experienced, provided that the new election is consistent with the event and the request for such a change is made within thirty-one (31) calendar days of the event's occurrence by submission of an application to the Department. Such application shall be required in addition to any insurance applications that may be required to comply with Chapter 60P-2,

F.A.C. The Department shall determine if the required benefit change is consistent with the change in status. Documentation of the occurrence of the change in status is required.

1. Herein, Petitioner failed to establish by a preponderance of the evidence that she timely sought to cancel her participation. If anything, the standard business procedure of Respondent militates against Petitioner's position.

2. Having failed to prove that she made the necessary changes within 31 days of the QSC event, Petitioner was required to continue participation in the program for Plan Year 2006. She is not entitled to any reimbursement.

RECOMMENDATION

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

RECOMMENDED that the Department of Management Services enter a final order ratifying its October 13, 2006, denial of Petitioner's requested retroactive cancellation of enrollment in the State Group Health Insurance Plan.

DONE AND ENTERED this 19th day of July, 2007, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 19th day of July, 2007.

COPIES FURNISHED:

Ericka L. Ledbetter 739 South Shelfer Stree Quincy, Florida 32351

Sonja P. Matthews, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

John J. Matthews, Director Department of Management Services Division of State Group Insurance 4050 Esplanade Way

Tallahassee, Florida 32399-0949

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: 07-001296

Orders for Case No: 07-001296