STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE PARKER ZAMMIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0583

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

APPEARANCES

For Petitioner: Curtright C. Truitt, Esquire

Post Office Box 2706

Fort Myers, Florida 33902

For Respondent: Richard L. Koppel, Esquire

435 Carlton Building Tallahassee, Florida 32301

This cause arose upon a petition filed by Irene Parker Zammiello by which she seeks to gain membership in the Florida State Group Health Insurance Plan which was denied by the Respondent on the basis, generally, that she had failed to timely exercise her option to enroll in the plan within 31 days of her initial employment without the requirement of proof of medical insurability. On July 9, 1984 the Petitioner was

notified by certified letter by the Department of Health and Rehabilitative Services that her request to join the State Health Insurance/ Plan was denied on the basis that the rules governing membership in the Plan embodied in Chapter 22K-1 Florida Administrative Code, did not allow one situated as the Petitioner, vis-à-vis her time of application for membership in the Plan, to enroll without filing proof of-medical insurability.

It is undisputed that the Petitioner is not medically insurable and can only be a member of the plan under the automatic enrollment provision delineated in the Rule cited below. The Petitioner timely exercised her right to a proceeding under Section 120.57(1) Florida Statutes and the cause came on for hearing as noticed.

At the hearing Petitioner presented her own testimony and the Respondent presented its testimony through depositions. Those depositions were those of witnesses Thurston, Clagett, Graham, Davis and Dever which are stipulated into evidence by counsel as joint composite Exhibit one. Additionally it was stipulated by the parties that the Petitioner's HMO Health Insurance coverage was terminated on August 1, 1981 because the Petitioner had failed to make a premium payment. In addition to the testimony presented by deposition in joint composite Exhibit one, the Respondent presented Exhibits two through thirteen, all of which were admitted into evidence. Respondent's Exhibits two, three, and four are various pertinent Rules taken from Chapter 22K Florida Administrative Code, Exhibits five, six and seven are insurance plan benefit documents pertinent to this proceeding.

Respondent's Exhibit 8 is an employee orientation log attendant to the deposition of witness Thurston.

Respondent's nine is a copy of an "Initial Employment Document" and Respondent's ten is a receipt signed by the Petitioner acknowledging her receipt of the Employee's Handbook explaining insurance benefit coverages and procedures Respondent's eleven is the Petitioner's application for supplemental health

insurance; Respondent's twelve is a New Enrollee Health Insurance Application and Medical Statement Form, with attachments, and Respondent's thirteen is a letter from the Department of Administration to the Petitioner dated October 22, 1980.

The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to automatic enrollment in the State Group Health Insurance Program (the Plan) without providing proof of medical insurability based upon her alleged lack of notice of her right to enroll in the plan without proof of insurability during the so-called "31-day grace period."

At the conclusion of the proceedings the parties elected to order a transcript and submit Proposed Findings of Fact and Conclusions of Law. No transcript has been forthcoming, accordingly this matter will be determined based upon the evidence of record and the testimony of the witnesses as noted by the Hearing Officer and the Proposed Findings of Fact and Conclusions of Law submitted by the parties. In addition to treating and ruling upon the Proposed Findings of Fact submitted by the parties in the body of this Recommended Order they are additionally addressed in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, at all times pertinent hereto was an employee of the Department of Health and Rehabilitative Services. The Respondent is an agency of the State of Florida charged with administering the group self-insurance health insurance program and other insurance programs such as life insurance and is the agency charged with accepting or rejecting applications for coverage under those programs, such as the application at issue.

   
   

2. On January 11, 1980 the Petitioner commenced employment with the State of Florida, Department of Health and Rehabilitative Services as a District Intake Counselor in District eleven of the Department.

   Shortly after commencing employment the Petitioner attended an orientation meeting during which all insurance benefits and other benefits available for state employees were explained. Ernestine Thurston, the HRS employee who conducted the orientation session on January 11, 1980 informed all employees present at that orientation meeting, including the Petitioner, of the available benefits and the means by which they were to avail themselves by proper application, of those benefits, including the fact that the Petitioner had thirty days to enroll in the State Group Health Insurance Program without the necessity of obtaining medical approval for insurability. A second orientation meeting was held during which insurance benefits were explained for a second time to the employees whose names were depicted on the recruitment log, which names include the Petitioner 's. The Petitioner was present at both orientation sessions.

   
   

3. At the first orientation session on January 11, 1980 the Petitioner received an HRS Employee Handbook which included the following language concerning insurance benefits:

   
   

   "Employees may enroll within 30 days of date of employment without evidence of insurability. "Application at a later date requires proof of insurability. Consult your supervisor, personnel manager, or district/central personnel office for additional information."

   
   

4. The Petitioner admitted that she signed a receipt on January 11, 1980 acknowledging receipt of a

   complete copy of that Employee Handbook and which receipt included the following language:

   
   

   "I understand that it is my responsibility to review the pamphlet in detail and request any clarification needed from my supervisor or personnel office."

   
   

5. Petitioner conceded that she did not read the pamphlet or handbook, but instead put it in her desk drawer at her

   office.

   
   

6. On January 14, 1980, knowing of the need to apply for insurance benefits within 30 or 31 days of her employment during the open enrollment period, the Petitioner applied for various insurance -overages and submitted the pertinent enrollment forms through her District 11 personnel office. She applied for and received State Supplemental Health Insurance coverage through the Gulf Life Insurance Company (then called the "20/20" plan). This supplemental health insurance coverage was designed to complement the overall state group health insurance program or plan. The Petitioner at that time was covered under the overall state group health insurance plan (The Plan) through her husband's family coverage since he was an employee covered under that plan at the time. The Petitioner also timely applied for and received coverage under the state life insurance program as well. The Petitioner did not submit a new enrollee form requesting to participate in the State of Florida Employee's Group Health Self Insurance Plan within 31 calendar days of January 11, 1980. The Hearing Officer has considered the Petitioner's testimony as well as that of Ms. Thurston and the other evidence surrounding the circumstances of her initial employment, the explanation of insurance coverage benefits, including the time limit for the

   open enrollment without medical approval which the Petitioner did not avail herself of insofar as the group health self-insurance plan is concerned. The Petitioner did not apply for the overall group health self-insurance plan because she was already covered under that plan through her husband's coverage and not because, as Petitioner maintains, that it was never explained that she had 30, or actually 31, calendar days from January 11, 1980 to apply for that plan.

   Indeed it was explained to her as Ms. Thurston established and Respondent admits receiving the handbook further explaining the time limit to apply for that coverage without medical approval. She signed a receipt acknowledging her responsibility to read that pamphlet or manual and ask for clarification, if needed, concerning coverage benefits and she admitted that she did not read it. Thus it is found that at the time of her initial employment all pertinent insurance benefits and entitlements were explained to the Petitioner both verbally and in writing and she failed to avail herself of the automatic coverage provision referenced above in a timely way, for the reason stated above.

   
   

7. In any event, on July 28, 1980 the Petitioner elected to submit a new enrollee form which was submitted with a medical statement form requesting participation in the State Plan. After correspondence with the State Plan administrator requesting additional medical information, on October 22, 1980 the Department of Administration, by letter, advised the Petitioner that she had not been approved by the plan administrator and she was denied coverage for medical reasons. Accordingly, on October 24, 1980 the Petitioner enrolled in the South Florida Group Health, Inc. Plan which is a health maintenance organization plan (HMO) and she was allowed enrollment in that plan without regard to her current medical condition.

8. The Petitioner remained enrolled in the HMO and requested and was granted leave of absence without pay from her employment position commencing May 29, 1981. Her employing agency advised her that it was her individual responsibility to forward premium payments for the HMO health insurance premiums as well as the state life insurance coverage herself. In other words, she was to pay by cash or her own personal check for this coverage during the time she was not being paid by the state, that is, the premiums for that coverage were not being payroll deducted because she was temporarily off the payroll. Her employment with the State did not lapse during this period commencing May 29, 1981, rather she remained employed, but was on leave without- pay status. The Petitioner knew of her responsibility to pay the premiums for the HMO coverage and the state life insurance coverage itself during the period she was on leave of absence without pay as evidenced by the check she and her husband submitted in June 1981 to pay the premiums on her state life insurance coverage. The Petitioner and her husband moved from Miami to Fort Myers during early June 1981 and the Petitioner remained on leave of absence without pay.

   
   

9. When her husband changed employment and moved to the Fort Myers area in June 1981 the Petitioner was a covered dependent under the health insurance coverage available to her husband through his new employment.

   
   

10. I n August 1981 the South Florida Group Health, Inc., the HMO in the Miami are of which Petitioner was a member, terminated the Petitioner's health insurance coverage effective August 1, 1981 due to the Petitioner's failure to pay the premiums for that coverage. Shortly thereafter the Petitioner interviewed with personnel officials of HRS in District

    8 in Fort Myers and obtained an employment position as a district intake counselor for District 8. She became an active payroll employee of HRS in District 8 by transfer in August 1981.

    
    

11. Before the effective date of her transfer the Petitioner was interviewed by Judy Graham, an HRS employee assigned to process her transfer from her former active employment in District 11 in Miami. The Petitioner failed to advise Judy Graham at the time of the interview of her HMO coverage, merely inquiring of Ms. Graham concerning the details of continuation of her state life insurance coverage and concerning her credit union membership. Thereafter, more than 31 calendar days after the effective date of her transfer, (August 24, 1981), indeed, in excess of two years later, the Petitioner completed a new enrollee form again and applied for the state employee's group self- insurance plan benefits. The Department of Administration denied the Petitioner participation upon the determination that she was not medically approvable for insurability by the Plan's claims administrator, Blue Cross and Blue Shield of Florida, Inc.

    
    

12. In any event, the Petitioner's continuous employment with the state and with HRS had never lapsed since she was initially hired January 11, 1980. She was merely on inactive/leave-without-pay status as a state employee from May 29, 1981 until August 24, 1981, as that relates to any right to a second 31-day open enrollment period.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1) Florida Statutes (1983).

    
    

14. Chapter 22K-1 Florida Administrative Code entitled "State Group Insurance Program" was enacted pursuant to Section 110.123(5), Florida Statutes. At all times material hereto, Rule 22K-1.15, Florida Administrative Code, entitled "Enrollment", has

    provided that an employee may apply for enrollment in the state group health insurance plan without medical approval by completing and submitting a new enrollee form to his or her employment personnel office during the first 31 calendar days after beginning a new term of office. That rule also provides that an employee may apply for enrollment in the plan after the first 31 calendar days of employment by completing and submitting a new enrollee form and an attached Medical Statement Form to his or her personnel office. In such cases the employee and each eligible dependent must have medical approval which is defined in Rule 22K- 1.13, Florida Administrative Code, as follows:

    
    

    "Medical approval shall mean satisfying the administrator as to the applicant's insurability after a completed Medical Statement Form."

    
    

15. The evidence of record clearly establishes that Petitioner failed to apply for enrollment in the Plan without medical approval during the first 31 calendar days of employment after January 11, 1980 when she commenced employment with the Department of Health and Rehabilitative Services. Thereafter, the Petitioner failed to obtain medical approval and was denied enrollment by the Department of Administration on medical grounds. The Petitioner has acknowledged that she is not medically insurable as a result of the various medical conditions depicted on her medical statement application form.

    
    

16. The Petitioner executed a document acknowledging her receipt of the HRS handbook in which all insurance benefits were thoroughly explained, including the 31-day grace period for enrollment in the State Group Health Insurance Plan without necessary proof of medical insurability. The Petitioner is charged with knowledge of the facts and representations contained in that handbook. The Petitioner admits that

    she did not read it when she received it. The provision in the handbook regarding the State Health Insurance Program and the methods of enrollment in it were sufficient to advise the Petitioner that enrollment in the State Group Health Insurance Plan would require medical approval unless an application for enrollment was completed and submitted within the 31-day period required by Rule 22K-1.15, Florida Administrative Code.

    
    

17. The Petitioner argues that HRS was responsible under that rule chapter to place a certification in her personnel file to the effect that she had not obtained coverage during the 31-day "free enrollment" and that she had refused the same. While this admittedly did not occur, this is not a material error on the part of the Petitioner's employer. The fact that the Petitioner may not have executed a document formally declining the coverage during the subject 31-day period, such that HRS would have then placed a certification of that formal declination in her file is a distinction without a difference. The facts clearly establish that the Petitioner had been informed of her rights to obtain coverage without proof of medical insurability within the 31-day grace period, both verbally and in writing, by virtue of the handbook which she was supplied which she admitted not having read, so the Petitioner was on notice of her rights and failed to avail herself of them. Thus, the employer's failure to certify that the Petitioner had formally declined the coverage is immaterial to disposition of the Petitioner's claim.

    
    

18. Petitioner has asserted that Rule 22K- 1.30(7)(b) would have permitted her to enroll in the State Group Health Self Insurance Plan without medical approval within 31-days of the date she became ineligible for membership in the HMO. Even if that

    were true the Petitioner failed to apply for enrollment again within the 31-day period which commenced either on the date she was canceled on her HMO coverage, August 1, 1981 for non-payment of premium, or from the date of August 24, 1981 when she became an active employee again with HRS. The Petitioner's own testimony reveals that since she learned from Judy Graham, who interviewed her in connection with her transfer to employment in Fort Myers, that no HMO coverage was available in the Fort Myers district, she saw no reason to continue her HMO benefits. This testimony reveals that, contrary to Petitioner's other testimony to the effect that she was not informed of the cancellation of her HMO coverage on August 1, that indeed she did not intend to continue her HMO coverage after her transfer to employment in Fort Myers anyway, and still, from the point of her transfer, August 24, 1981, she did not avail herself of any right to a 31- day enrollment without insurability proof in the State Group Health Insurance Plan.

    
    

19. Indeed, she did not seek to enroll in the Plan again until much later. In this connection the Petitioner asserts that she failed to apply within the time period of 31 days after her transfer to the Fort Myers office because HRS failed to advise her of this "HMO conversion" option. This is not supported by the evidence because it has been established that Petitioner did not inform Judy Graham or any other personnel that she had HMO coverage nor that she wished to terminate or convert her HMO coverage, (even if the Petitioner's version of events is correct and she did not know her HMO coverage had been canceled August 1, 1981).

    
    

20. Be that as it may, the Petitioner acknowledged that she had been informed that she would have to pay for her own insurance premiums out of her own bank account upon her entering into the period of time of leave of absence without pay. Since she admits

    she knew she had to pay her own insurance premiums with her own check during that period she is charged with knowledge that she had not paid her July premium and thus with knowledge that she would have no more HMO coverage after the end of July 1981. Indeed, a transmittal memorandum in evidence, between personnel officials of HRS involved in effecting her transfer to employment in Fort Myers, shows that the only payroll deductions were for her life insurance coverage and for her credit union. Certainly the Petitioner knew that her HMO coverage was no longer in effect and should have known upon her assuming her new employment status or at the very latest the receipt of her first payroll check, sometime in September 1981 that no payroll deductions were made for any kind of health care insurance coverage including HMO and yet she failed to inquire of her employers about the availability or possibility of joining the State Group Health Insurance Plan until much later, as late as shortly before January of 1984.

    
    

21. Thus, it was established that the Petitioner knew she had no health insurance coverage under either an HMO or the State Plan shortly after her transfer to employment in Fort Myers. She waited for approximately two years before inquiring about any rights she might have to enroll in the State Group Health Self Insurance Plan at which time, it being beyond 31 days after her loss of entitlement to HMO coverage, she could not enroll in that plan without proof of medical insurability, which she undisputedly cannot establish.

    
    

22. Finally, it should be noted that, although under Rule 22K-1.30(7)(b) an employee who becomes ineligible for membership in an HMO for any reason may reenter the Group Health Insurance Plan without medical approval within 31-calendar days, it is also provided in the same Rule Section: at (8) (d) as follows:

"Employees who applied for coverage in the Plan by medical statement application and who were rejected but subsequently accepted by a federally qualified HMO without medical statement application or medical approval shall not be eligible to transfer to the Plan."

1. Thus, it being undisputed that the Petitioner had applied in 1980 and been rejected on medical grounds for coverage in the "Plan", her employer HRS, would have been correct had it denied a timely application to transfer from HMO coverage to the State Group Plan since she had never been a member of that self-insurance plan who was merely seeking to reenter it, but rather, had been an employee who was actually rejected from membership in the Plan upon her original 1980 application, for medical reasons.

   
   

2. In any event, the record reveals without contradiction that the Petitioner failed to timely apply for group plan coverage substantially longer than

   31 days either after her transfer to her new place of employment or after she was certainly chargeable with knowledge that her HMO coverage no longer existed, whether that date be the August 1 termination of her coverage, the August 14, 1981 date of her initial interview with the HRS personnel in Fort Myers, the August 24, 1981 date of her actual new employment status or the date, sometime in September, of her first paycheck in connection with which she failed to establish that any payroll deduction for any kind of health care coverage was being made, as that relates to her actual knowledge on that date that she had no form of State Health Insurance coverage, HMO or otherwise.

   
   

3. Accordingly, in view of the above Findings of Fact and Conclusions of Law it is clear that the Petitioner has failed to sustain its burden of showing

entitlement to participate in the State Group Health Insurance Plan without proof of medical insurability.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore,

RECOMMENDED that a final order be entered by the Department of Administration denying the Petitioner's requested enrollment in the State Group Health Insurance Plan without medical approval.

DONE AND ORDERED this 31st day of December, 1985, in Tallahassee, Florida.

P. MICHAEL RUFF 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 31st day of December, 1985.

APPENDIX

The following specific rulings are made on the Proposed Findings of Facts submitted by the parties:

Petitioner's Proposed Findings of Fact

1. Accepted.

   
   

2. Accepted, but subordinate and not material to disposition of the issues at bar.

3. Accepted, but subordinate and not material to disposition of

   the issues at bar.

4. Accepted, but subordinate and not material to disposition of

   the material issues at bar.

5. Rejected as not being in accordance with the competent,

   substantial, credible testimony and evidence adduced.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted.

13. Accepted.

14. Accepted.

15. Rejected as not being in accordance with the competent,

    substantial, credible testimony and evidence adduced.

16. Accepted, but this Proposed Finding of Fact in itself is

    not dispositive of the material issues of fact and

    law

    resolved herein.

17. Accepted.

18. Rejected as not in accordance with the competent, substantial, credible evidence and testimony

    adduced.

19. Accepted.

20. Accepted.

Respondent's Proposed Findings of Facts

The Respondent failed to number its Proposed Findings of. Fact, therefore its Proposed-Findings of Fact will be specifically ruled upon in the order the various paragraphs containing its Proposed Findings of Fact were presented.

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted.

COPIES FURNISHED:

Gilda Lambert Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Curtright C. Truitt, Esq. Post Office Box 2706

Ft. Myers, Florida 33902

Richard L. Kopel, Esq. Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 85-000583

Orders for Case No: 85-000583