STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. DAVIS, )

)

Petitioner, )

and )

) DEPARTMENT OF NATURAL RESOURCES, )

)

Intervenor, )

)

vs. ) CASE NO. 82-2871

) DEPARTMENT OF ADMINISTRATION, ) BUREAU OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 14, 1983, in Tallahassee, Florida.

Petitioner Mary L. Davis appeared on her own behalf; Kevin X. Crowley, Esquire, Tallahassee, Florida, appeared on behalf of Intervenor Department of Natural Resources; and Daniel C. Brown, Esquire, Tallahassee, Florida, appeared on behalf of Respondent Department of Administration, Bureau of Insurance.

Petitioner filed a claim for benefits under the State Employees' Group Health Self Insurance program, and Respondent denied that claim for the reason that Petitioner had waived coverage under that program. Petitioner timely filed a request for formal hearing. Accordingly, the issue for determination is whether Petitioner is entitled to health insurance coverage under the State Employees' Group Health Self Insurance Plan from and after October 1, 1981.

The Motion to Intervene filed on behalf of the Department of Natural Resources was granted on December 7, 1982.

The Petitioner testified on her own behalf. Additionally, Petitioner's Exhibit numbered 1 and Petitioner's Composite Exhibit numbered 2 were admitted in evidence. Ginger H. Bailey testified on behalf of the Respondent, and Intervenor's Exhibit numbered 1 was admitted in evidence.

The Intervenor and the Respondent submitted proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Respondent administers the State of Florida Employees' Group Health Self Insurance Plan as a self insurance plan pursuant to Section 110.123(5), Florida Statutes.

   
   

2. Prior to October 1 1981, Petitioner was an employee of the Department of Natural Resources. For some period of time, Petitioner purchased coverage under that health insurance plan. When she married an employee of the federal postal service, she dropped her health insurance with the State of Florida, since she preferred health insurance coverage under her husband's Policy with the federal government.

   
   

3. Petitioner's employment with the Department of Natural Resources was reclassified so that she became a member of the Senior Management Service during September or October 1981. One of the benefits available to Senior Management Service employees is coverage under the State of Florida Employees' Group Health Self Insurance Plan free of charge to the employee. In the case of a Senior Management Service employee who accepts coverage under that Plan, the employing agency pays the full premium cost for the employee.

   
   

4. On September 18, 1981, Ginger Bailey, an employee in the personnel office of the Department of Natural Resources, typed in the required information on insurance application forms for the various insurance policies available to Petitioner when her Senior Management status became effective on October 1, 1981. Bailey took the application forms to Petitioner, who was too busy at the time to discuss with Bailey the different insurance policies available and the forms themselves. Bailey left the forms with Petitioner.

   
   

5. On October 8, 1981, Petitioner went to the personnel office so that Bailey could review with her the insurance benefits available to Senior Management status employees. Bailey explained each available insurance policy to the Petitioner individually and, for each, offered Petitioner an application form already completed by her.

   
   

6. Petitioner accepted the offer of State-paid life insurance and disability insurance by signing the application form for such insurance in the acceptance block. When Bailey explained to Petitioner the health insurance, Petitioner commented that she would not need the insurance because her husband's policy was so good. Accordingly, Bailey directed Petitioner's attention to the portion of the application marked in bold letters, "Refusal." Petitioner signed the refusal portion of the application and dated her signature. Bailey struck through the September 18, 1981, date she had previously filled in for Petitioner in the acceptance section of the application.

   
   

7. At no time did Bailey or any other agent or employee of the Department of Natural Resources or of the Department of Administration represent or state to Petitioner that she was covered by or was a member of the State of Florida Employees' Group Health Self Insurance Plan.

   
   

8. In June 1982, Petitioner obtained a copy of the State of Florida Employees' Group Health Self Insurance Booklet containing an explanation of benefits effective July 1, 1982. On a sheet of paper, Petitioner typed the name of the Plan, the name and address of the administrator of the Plan, the group number, and the policy number. She taped this slip of paper to the front of the Booklet.

9. During the month of June 1982, Petitioner's husband's 20-year-old daughter was admitted to a hospital. Petitioner showed hospital employees the health insurance explanation Booklet with the information she had placed on the front of it, since she could not "find" her insurance card, and the hospital accepted Petitioner's representations as proof of insurance.

   
   

10. Coverage for Petitioner's stepdaughter was no longer available on Petitioner's husband's insurance policy, since she was over 19 years of age. Petitioner submitted a claim form to Blue Cross and Blue Shield of Florida, Inc., the administrator of the State of Florida Employees' Group Health Self Insurance Plan. The claim submitted by Petitioner to the Plan was rejected for lack of coverage.

    
    

11. No evidence was presented as to whether a Senior Management Service employee's family members receive free coverage under the State's health insurance plan, and no evidence was presented as to whether Petitioner had any legal or financial responsibility for her adult stepdaughter.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

13. Chapter 22SM-1, Florida Administrative Code, contains the rules of the Department of Administration regarding Senior Management Service. Section 22SM- 1.02(1), Florida Administrative Code, contains general provisions and provides that:

    
    

    The Senior Management Service is designated to attract, retain and develop highly competent senior-level managers for executive positions having principally policy-making or

    policy-making and managerial responsibilities.

    
    

    Section 22SM-1.11(1), Florida Administrative Code, provides for employer-paid insurance for Senior Management employees.

    
    

14. In her capacity as a Senior Management Service employee, Petitioner was handed a one-page application form for health insurance coverage, which form was already completed except for Petitioner's signature in the section boldly and conspicuously marked "Acceptance." After having explained to her the details of the free insurance coverage, Petitioner stated to Bailey that she did not need the coverage because of her husband's insurance policy. Petitioner then signed the section boldly and conspicuously marked "Refusal" and dated her signature. In view of the clearly marked "Acceptance" and "Refusal" sections of the one-page form, in view of Petitioner's lack of difficulty in distinguishing between the "Acceptance" and "Refusal" implications on the application forms for the insurance she did accept, in view of Petitioner's comments to Bailey that she did not need the insurance, and in view of Petitioner's level of intelligence implied by her appointment to an "executive position" for "highly competent senior-level managers," it is illogical to conclude that Petitioner did not understand she was refusing insurance coverage, no matter how much it would or would not cost her. Accordingly, Petitioner's argument that she did not understand that she refused insurance coverage must fall. For the same reasons, Petitioner's argument that she should be afforded coverage because she didn't read anything she signed must also be rejected.

15. Section 22K-1.17, Florida Administrative Code, requires that for coverage under the Employees' Group Health Self Insurance Plan to become effective, a completed New Enrollee or Change of Information form must be submitted to the Department of Administration. No such form was submitted in this case. Instead, Petitioner submitted a rejection of the insurance. Whether Petitioner believed she was receiving insurance or not when she signed the "Refusal" block on the New Enrollee form, it is clear that there was no meeting of the minds, and therefore there was no contract formed on October 8, 1981, with respect to coverage for Petitioner.

    
    

16. Petitioner next argues that the Department of Administration is estopped to deny coverage in this case. In order for the doctrine of estoppel to apply, three elements are required: (1) a representation by the party estopped to the party claiming estoppel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon. Quality Shell Homes & Supply Co. v. Roley, 186 So.2d 837, 841 (Fla. 1st DCA 1966). In this case, neither Bailey nor any other agent or employee of the Department of Natural Resources or the Department of Administration represented to Petitioner at any time that she was covered under the group health plan. Since there was no representation that Petitioner was covered, there could have been no reliance upon that representation. Furthermore, there was no change of position by the Petitioner in this case from her prior circumstances as a result of any alleged representation or reliance. Petitioner testified that at the time of signing the refusal form she did not have State of Florida Employees' Group Health Self Insurance coverage and instead relied upon the health insurance coverage provided by her husband's employer, the United States Post Office.

    
    

17. Even if it could be argued that Petitioner's failure to read the forms she signed excuses her from the consequences thereof, Petitioner has failed to present any evidence to show that her adult stepdaughter would have been automatically included under Petitioner's enrollment or that employer paid insurance for Petitioner automatically included employer paid insurance for any and all members of Petitioner's family and/or household. Even if a Senior Management Service employee's relatives are automatically included in the State's Group Health Self Insurance Plan, Petitioner also failed to present any evidence that an adult stepchild would be automatically one of those covered relatives. Rather, Section 22K-1.13, Florida Administrative Code, contains the following definitions regarding relatives of State employees:

(10) "Financially responsible" shall mean a degree of financial support sufficient to claim the eligible dependent as an exemption on the employee's income tax return.

1. "Eligible dependents" shall mean the wife or husband of the employee and any eligible children.

2. "Eligible children" shall mean the employee's own children, legally adopted children, stepchildren for whom the employee is financially responsible, or any other children for whom the employee has established legal guardianship in accordance with Chapter

   744, Florida Statutes, and who are within one of the following categories: Unmarried eligible children shall be eligible for coverage under the Plan from their date of birth to the end of the month in which their nineteenth (19th) birthday occurs; or to the end of the month in which their twenty-third (23rd) birthday occurs, if they are enrolled in and regularly attending on a full-time basis any school, college or university which provides training or educational activities, and which is certified or licensed by a state or foreign county [sic]; except that unmarried eligible children who are mentally retarded or physically handicapped shall be eligible for health coverage regardless of age in accordance with Section 627.6615, Florida Statutes.

3. "Full-time basis" shall mean the number of hours required by the school, college or university to qualify as a full-time student. In no case shall an eligible child be considered attending on a full-time basis unless they are currently enrolled and attending, or they have, during the previous twelve (12) month period, attended as a

full-time student, two (2) semesters, three

(3) quarters or eight (8) months at such school, college or university.

Accordingly, not only has Petitioner failed to carry her burden of proving that she should be deemed to be covered by the State's group health insurance plan, effective October 1, 1981, but Petitioner has also failed to carry her burden of showing that her adult stepdaughter, the recipient of the medical services for which Petitioner submitted the claim for benefits, would have also been automatically covered with any premium for that coverage being paid by the State of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request that

she be deemed covered by the State of Florida Employees' Group Health Self

Insurance Plan from and after October 1, 1981, without prejudice to the Petitioner's right to apply, if she desires, for prospective coverage under the Plan in accordance with the Plan's requirements, rules and regulations.

DONE and RECOMMENDED this 25th day of April, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 25th day of April, 1983.

COPIES FURNISHED:

Ms. Mary L. Davis Post Office Box 753 Havana, Florida 32333

Kevin X. Crowley, Esquire Department of Natural Resources Douglas Building, Suite 1003 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Daniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Nevin G. Smith, Secretary Department of Administration

530 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 82-002871

Orders for Case No: 82-002871