STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUANITA L. RESMONDO )

)

Petitioner, )

)

vs. ) CASE NO. 87-1485

) STATE OF FLORIDA, DEPARTMENT OF ) ADMINISTRATION, OFFICE OF STATE ) EMPLOYEES' INSURANCE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 11, 1987, in Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented as follows:

FOR PETITIONER: Ms. Juanita L. Resmondo

Post Office Box 494 Micanopy, Florida 32667

FOR RESPONDENT: Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

ISSUE

The basic issue in this case is whether the Petitioner is entitled to a waiver of the limitations in the state group health self insurance plan regarding pre-existing conditions during the first 12 months of coverage under the plan.

INTRODUCTION AND PROCEDURAL MATTERS

At the commencement of the hearing the parties stipulated to several facts.

Thereafter, the Petitioner testified on her own behalf and also presented the testimony of two other witnesses. The Respondent presented the testimony of one witness and offered two exhibits, both of which were received in evidence. At the conclusion of the presentation of evidence, the parties were given ten days within which to submit their written proposals and arguments to the Hearing Officer. The Petitioner filed a post-hearing letter dated May 12, 1987, which is primarily a written statement of position. The Respondent filed a post- hearing proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact are contained in the appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the testimony presented at the hearing, and on the exhibits received in evidence, I make the following findings of fact.

1. The Petitioner was first employed by the Department of Transportation as a Clerk Typist Specialist on October 31, 1986. As a new employee, the Petitioner was entitled to select health insurance under the state group health self insurance plan or with a participating health maintenance organization (HMO). The state group health self insurance plan and the HMO's each have different benefits and premiums.

   
   

2. The Petitioner's direct supervisor is Ms. Gwen Molander. On October 30, 1986, the day prior to her first day of employment, the Petitioner met with her supervisor to sign the employment paperwork. On that day Ms. Molander called the Department of Transportation personnel office in Lake City for the purpose of finding out whether the state group health self insurance plan would cover pre-existing allergy conditions of the Petitioner's son. Ms. Molander specifically asked the Lake City personnel office if the plan would cover the Petitioner's son if the son was under the care of an allergist. The words "pre- existing condition" were not used in the conversation Ms. Molander had with the Lake City personnel office.

   
   

3. The Lake City personnel office told Ms. Molander that the Petitioner's son would be covered even if it was not an open enrollment period. The Petitioner authorized a "double-up" deduction so the health insurance would be effective as of December 1, 1986. The Petitioner's son has been covered as a dependent under the Petitioner's health insurance since December 1, 1986.

   
   

4. Based on the information from the Lake City personnel office, the Petitioner believed that the state group health self insurance plan would provide coverage for all of her son's medical expenses without any limitation regarding pre-existing conditions. The Petitioner's son had a pre-existing allergy condition for which he received medical treatment in December of 1986 and thereafter. Since December of 1986 the Petitioner has incurred medical bills of approximately $2,000.00 for treatment related to her son's pre-existing allergy condition. The state group health self insurance plan has refused to pay any of the medical expenses related to the treatment of the pre-existing allergy condition of the Petitioner's son.

   
   

5. The state group health self insurance plan contains a provision to the effect that "no payment shall be made for pre- existing conditions during the first 12 months of coverage under the Plan." Accordingly, the refusal to pay described above is consistent with the provisions of the state group health self insurance plan.

   
   

6. At the time the Petitioner chose to enroll in the state group health self insurance plan, she could also have chosen any of three HMO programs available to state employees in he Gainesville area. Petitioner chose the state group health self insurance plan because of her belief that it provided coverage for her son's pre-existing allergy condition. There is no competent substantial evidence in the record in this case regarding the coverage provided by the three available HMO's, the limitations (if any) on the coverage, or the cost to the employee of such coverage.

7. At the time the Petitioner chose to enroll in the state group health self insurance plan, her employing office did not have any written information regarding the health insurance options available to new employees. There is no evidence that the Petitioner attempted to obtain information regarding health insurance options from any source other than her direct supervisor and the Lake City personnel office.

   
   

8. On the insurance enrollment form signed by the Petitioner, dated October 31, 1986, the Petitioner was put on notice and acknowledged that coverage and the effective dates of coverage under the state group health self insurance plan were governed by Rule Chapter 22K-1, Parts I and II, Florida Administrative Code, and by the plan benefit document, "regard-less of any statements or representations made to me. "

   
   

9. The Petitioner has previously worked in the insurance field and she is familiar with limitations on coverage for pre-existing conditions.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

11. The Secretary of Administration is responsible for the administration of the state group health self insurance plan. In this regard, Section 110.123(5), Florida Statutes, provides, among other things, that the Department of Administration shall, subject to legislative approval:

    
    

    Determine the benefits to be provided and the contributions to be required for the state group insurance program. Such deter- minations, whether for a contracted plan or a self-insurance plan pursuant to paragraph (c), do not constitute rules within the meaning of s. 120.52(15), or orders within the meaning of s. 120.52(10).

    
    

12. In carrying out the foregoing legislative mandate, the Secretary has established a plan which includes a provision to the effect that "no payment shall be made for pre-existing conditions during the first 12 months of coverage under the Plan."

    
    

13. The rules governing enrollment of employees for health insurance coverage are Rules 22K-1.202 and 22K-1.402, Florida Administrative Code. The essential provisions of those rules are that at any time during a new employee's first thirty-one days of employment, the employee may enroll in the state group health self insurance plan or in a qualified HMO plan.

    
    

14. When the Petitioner signed the insurance enrollment form dated October 31, 1987, she was put on notice and acknowledged that coverage and the effective dates of coverage under the plan were governed by Rule Chapter 22K-1, Parts I and II, Florida Administrative Code, and by the plan benefit document, "regardless of any statements or representations made to me . . . ." When the Petitioner signed that insurance enrollment form, she was placed on notice that

    oral statements or representations would not establish or modify the terms of the state group health self insurance plan. Accordingly, she was placed on notice that if she was uncertain about the terms of the insurance plan, she should resolve any uncertainties by consulting the cited rule provisions and the written insurance plan. Considering the extent to which coverage for pre- existing conditions was important to the Petitioner, and considering the Petitioner's prior insurance related experience by reason of which she knew that limitations on coverage for pre-existing conditions are not uncommon, she simply made a premature and imprudent choice by enrolling in the state group health self insurance plan without verifying its coverage provisions.

    
    

15. The Petitioner argues that she is entitled to relief because she relied on her supervisor in good faith. This argument is unavailing for two reasons. First, as discussed in the preceding paragraph, the Petitioner was on notice not to rely on oral representations regarding the insurance plan. Second, the incorrect information received by the Petitioner's supervisor appears to be due in large part to the failure of the Petitioner or the

    supervisor to ask the right questions because, as noted in the findings of fact, the inquiries to the Lake City personnel office failed to include a specific mention of the term "pre-existing condition."

    
    

16. As a final matter it is noted that even if the Department of Administration were in some way responsible for the choice of insurance plan made by the Petitioner, the evidence in this case is insufficient to show that such choice caused any substantial harm to the Petitioner. While the Petitioner contends that all of her son's medical expenses would have been covered if she had enrolled in an HMO, there is no competent substantial evidence to support that contention. Petitioner testified that she was "told" that two of the available HMO's do not have limitations for pre-existing conditions, but what she was told is uncorroborated hearsay which is insufficient to support a finding of fact. Further, even if it had been proved that one or more of the available HMO's did not have limitations for pre-existing conditions, there is still no evidence of the premiums charged by such HMO's. In the ordinary course of events, other things being equal, better coverage goes hand in hand with higher premiums. Absent proof of such matters, it is impossible to determine whether the Petitioner has actually suffered a greater financial burden then [sic] would have been the case had she enrolled with an HMO.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Department of Administration issue a final order in this case denying the relief requested by the Petitioner and dismissing the petition in this case.

DONE AND ENTERED this 29th day of May, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1485

The following are my specific rulings on the proposed findings of fact submitted by both parties:

Proposed findings submitted by Petitioner

As noted in the introductory portion of the recommended order in this case, the Petitioner's post-hearing submission consists of a letter dated May 12, 1987. Although the letter does not contain any statements which are identified as proposed findings of fact, in light of the lesson taught by Kinast v.

Department of Professional Regulation, 458 So.2d 1159 (Fla. 1st DCA 1984), all factual assertions in the letter of May 12, 1987, have been treated as though they were proposed findings of fact. The references which follow are to the unnumbered paragraphs and sentences of the letter of May 12, 1987.

First unnumbered paragraph: This is an introductory comment only.

Second unnumbered paragraph: First sentence is rejected as a proposed finding because not supported by evidence in the record. Second sentence is a statement of position rather than a proposed finding. Third sentence is rejected as a proposed finding because not supported by evidence in the record. Fourth sentence is a statement of the relief requested rather than a proposed finding. Fifth sentence is rejected as a proposed finding because it is inconsistent with the greater weight of the evidence.

Third unnumbered paragraph: This entire paragraph is rejected as proposed findings because it consists of statement of position and argument rather than proposed facts.

Proposed findings submitted by Respondent

The Respondent's proposed findings of fact are contained in twelve numbered paragraphs in Respondent's proposed recommended order. The paragraph references which follow are to each of those twelve paragraphs.

Paragraph 1: Accepted.

Paragraph 2: First sentence accepted. Second sentence is

rejected in part and accepted in part; first ten words are rejected as not supported by competent substantial evidence in the record. The remainder of the sentence is accepted.

Paragraph 3: Accepted.

Paragraph 4: Accepted in substance with correction of

confused dates and deletion of irrelevant details.

Paragraph 5: Accepted.

Paragraph 6: Accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance.

Paragraph 9: First sentence accepted in substance. Second

sentence rejected as not supported by competent substantial evidence.

Paragraph 10: Accepted in substance.

Paragraph 11: Accepted in substance.

Paragraph 12: Rejected as irrelevant due to the fact that

no such literature was available at Petitioner's employing office.

COPIES FURNISHED:

Ms. Juanita L. Resmondo Department of Transportation Maintenance Office

Post Office Box 1109 Gainesville, Florida 32602

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-001485

Orders for Case No: 87-001485