STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AURELIO DURANA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2622

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 19 January 1982 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Aurelio Durana, Esquire, pro se

1224 Cross Creek Circle Tallahassee, Florida 32301

For Respondent: David V. Kerns, Esquire

435 Carlton Building Tallahassee, Florida 32301

By letter dated September 18, 1981, Aurelio Durana, Petitioner, contested the demand for payment for underpayment of premiums on his family health insurance plan following his wife's termination of State employment, and requested a hearing on this issue. Although the case is styled with Durana as Petitioner, the hearing proceeded as if the State was Petitioner. Since the State is seeking to recover cost of premiums for health insurance, the ultimate burden of proof was placed upon the State. Thereafter, the State called two witnesses, Durana testified in his own behalf and thirteen exhibits here admitted into evidence. The facts here involved are undisputed. Proposed findings submitted by the parties and not included below were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Aurelio Durana has been employed with the Department of Administration continuously since 1979. He enrolled in the State of Florida Employees' Group Health Self-Insurance Plan before the period in dispute and had maintained individual coverage until August 1, 1980.

2. Alina Durana, Petitioner's spouse, was employed by the Department of State from 1977 until her resignation on March 9, 1981. From September 9, 1980, through March 9, 1981, Alina Durana was on maternity leave without pay from her position at the Department of State. This maternity leave expired March 9, 1981 (Exhibit 2).

   
   

3. Alina Durana had enrolled in the Group Health Insurance Plan from the beginning of her employment and maintained individual coverage until August 1, 1980.

   
   

4. Effective August 1, 1980, Petitioner and his spouse elected family coverage, entitling them to a State contribution covering the entire premium. On Application for Multiple Contributions dated 1 July 1980 (Exhibit 8), Petitioner agreed to be responsible for any underpayment of premium resulting from his wife's ineligibility for a State contribution and agreed that any such underpayment should be deducted from any salary due him.

   
   

5. Under the State Health Insurance program the agency for whom the employee worked contributes one-half of the family premium of $69.96 per month. Since both Petitioner and his wife were working for the State, each agency contributed $34.98 per month, thereby covering the entire premium. The agencies contribute this sum to the trust fund from which medical claims of employees are paid.

   
   

6. When an employee ceases to be on the agency's payroll the agency stops this contribution to the fund and is supposed to notify the Department of Administration so pay adjustments to employees' pay can be made if necessary.

   
   

7. When Mrs. Durana commenced her leave without pay on September 9, 1980, the Department of State failed to notify the Department of Administration that they were no longer contributing $34.98 per month to the Durana family health plan. Had they done so, the Department of Administration would have notified Durana that he would have $34.98 deducted from his pay each month if he desired to remain in the program.

   
   

8. In September 1981 Petitioner notified the Department of Administration Personnel Office that health insurance premiums were not being deducted from his pay. Thereafter, Respondent learned of the departure of Mrs. Durana from the Department of State payroll in September 1980 and made claim against Durana for

   $316.14 for underpayment of premiums from the period the Department of State had not contributed to the fund and no premiums were paid by Petitioner.

   
   

9. During the period Mrs. Durana was not on the payroll and the Department of State was contributing nothing to the trust fund, no claims were submitted by Durana for medical costs. However, during this period Petitioner was included in the list of beneficiaries of the State Health Insurance Plan and medical bills submitted by him would have been paid by the administrator of the trust fund.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Rule 22K-1.22, Florida Administrative Code, provides in pertinent part:

    Any state officer, full-time employee or part-time employee participating in the Plan shall receive the state contribution or prorated state contribution if any of the following conditions exist:

    1. The participant is on the state payroll for a minimum of one day in the month previous to the month of coverage.

    2. The participant is on the state payroll for a minimum of one day in the month in which he or she goes on approved leave without pay or in the month in which he or she returns from approved leave without pay.

       
       

12. Section 22K-1.25, Florida Administrative Code, provides in pertinent part:

    
    

    (2)(a) An insured employee granted leave without pay in accordance with a leave program approved by the Department of Administration shall be eligible to continue coverage while on such leave for a period not to exceed twenty-four (24) months, provided the employee pays the full premium cost.

    
    

13. Petitioner's situation at the time his wife left the Department of State payroll to go on maternity leave is fully covered by the above quoted rule.

    
    

14. In his Proposed Recommended Order Petitioner contends that Respondent's rules respecting the administration of the health plan are invalid as beyond the authority granted by the Legislature. Not only was no rule challenge to any specific rule filed pursuant to Section 120.56, Florida Statutes, but also no evidence was submitted at the hearing respecting these rules, or to show there is no valid basis for distinguishing between treatment according to employees on worker's compensation disability leave and workers on maternity leave.

    
    

15. Petitioner further contends that he thought he was not required to contribute to the plan while his wife was on maternity leave, but apparently made no effort to verify this misunderstanding. These rules are promulgated in the Florida Administrative Code and all employees are on notice of rules so published which affect them. Petitioner also contends that had he realized he would be required to contribute for his wife's portion of the health insurance plan while she was on maternity leave, he could have considered other insurance. This appears to be an argument alleging estoppel; however, the principal element of equitable estoppel is absent. The Petitioner made no change, to his detriment, as a result of any action or lack of action taken by the State.

    
    

16. From the foregoing it is concluded that Aurelio Durana underpaid the premium for family health plan after his wife went on maternity leave in September 1980 until these premium payments were commenced in October 1981, a total of $316.14. The fact that, due to administrative error the premiums were not withheld as soon as they became due in October 1980 after Mrs. Durana departed on maternity leave and was dropped from the Department of State's payroll, in no wise affects Petitioner's obligation to pay these premiums. It is, therefore,

RECOMMENDED that Aurelio Durana repay the State of Florida $316.14 for underpaid premiums due on his family Health Plan Self-Insurance Program on a repayment schedule agreeable to both parties.

ENTERED this 15th day of February, 1982, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1982.

COPIES FURNISHED:

Aurelio Durana, Esquire 1224 Cross Creek Circle Tallahassee, Florida 32301

David V. Kerns, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Nevin Smith, Secretary Department of Administration The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-002622

Orders for Case No: 81-002622