STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA E. WALSH, a minor child, ) through her mother and natural ) guardian, KATHLEEN E. HEISTAND, ) and KATHLEEN E. HEISTAND, )

)

Petitioners, )

)

vs. ) CASE NO. 87-3820

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

Arthur C. Fulmer, Esquire, of Lakeland, for Petitioners. Augustus D. Aikens, Esquire, of Tallahassee, for Respondent.

RECOMMENDED ORDER

The dispute between the parties to this case is whether treatment proposed to be rendered to Sandra E. Walsh--namely, teeth extractions and braces--is in the nature of orthodontia and not covered by State group health insurance or is orthopedic in nature and covered by State group health insurance. Final hearing was held in Lakeland on February 18, 1988.

FINDINGS OF FACT 1/

1. Kathleen E. Heistand is the natural mother and guardian of Sandra E. Walsh. Mrs. Heistand has been an employee of the State of Florida Department of Health and Rehabilitative Services and an insured under the State Employees' Group Health Insurance since 1979. As an insured dependent, Sandra also is covered by the insurance plan.

   
   

2. When nine years old, Sandra's brother accidentallY kicked her in the side of her face. After the injury, Sandra began having health problems, starting with headaches and earaches. Through time, the health problems worsened. The headaches and earaches became more painful and frequent. In addition, Sandra's jaws began to lock in either the open or closed position.

   
   

3. In late 1983 or early 1984, one of Sandra's doctors, an otolaryngologist, while treating Sandra for earaches was told of a recent episode when Sandra's jaw locked. He causally connected the earaches (and headaches) to the condition that also was causing the girl's jaws to lock and referred Sandra to a specialist in oral and maxillofacial (bones of the face and jaw) surgery, Dr. Harley M. Richards, D.D.S.

   
   

4. Dr. Richards first saw Sandra, by then 14 years old, in February, 1984. He diagnosed Sandra's primary medical condition as internal derangement of her right temporomandibular joint (TMJ) (the joint between the lower jaw and skull) caused by injuries to the ligament and cartilage. The injuries occurred during the accidental kick five years before and aggravated over the years from normal

   use and especially from intermittent spasmodic locking of the jaw joint. (When the jaw locks it stretches the ligaments beyond normal range and wedges the cartilage disc between the ball and socket of the joint.)

   
   

5. As treatment for Sandra's condition, Dr. Richards recommended as a conservative initial treatment the use of a plastic oral appliance called a splint to hold Sandra's jaw in correct position to prevent locking. He hoped that this would give the TMJ time to heal itself. Then, Dr. Richards recommended, Sandra would have orthodontic 2/ treatment to correct evident malocclusions of her teeth. With this additional treatment, Sandra's TMJ would be able to function normally without the splint; without it, the malocclusions eventually would cause re-injury of the TMJ.

   
   

6. The initial treatment was not successful. Even with the splint in her mouth almost 24 hours a day, Sandra's jaw continued to lock. Dr. Richards then recommended, and on September 24, 1984, performed, TMJ meniscus plication surgery. In the surgical procedure, the ligaments in the TMJ were resected to adjust for stretching and the cartilage discs were repaired. To protect the results of the successful surgery, Dr. Richards had Sandra continue to wear a splint 24 hours a day for six months. Then his treatment plan was for Sandra to have orthodontic treatment to correct for malocclusion to protect the surgery results in the future (and relieve Sandra of having to continue to wear a splint.)

   
   

7. By late 1984, Mrs. Heistand learned that the State group health insurance did not pay 100% of her actual cost of Sandra's surgery. In anticipation of the recommended orthodontic treatment in March, 1985, she inquired as to coverage of those costs and was told that there was no coverage. Eventually, this proceeding resulted.

   
   

8. Before March 1, 1985, the State group health insurance provided, among other things:

   
   

   1. "Accident" means accidental bodily injury sustained by the Insured

      which results in and is the direct cause of medical expenses independent of illness.

      I. DEFINITIONS

      Any time the following terms are used in this document, they shall have the following meaning:

      AA. "Physician" shall mean the following:

      1. a doctor of medicine (M.D.), doctor of osteopathy (D.O.), doctor of

      surgical chiropody (D.S.C.) or doctor of podiatric medicine (D.P.M.), who is legally qualified and licensed to practice medicine and perform surgery at the time and place the service is rendered;

      * * *

      3. a licensed dentist who performs specific surgical or non-dental procedures covered by the plan,

      or who renders services due to injuries resulting from accidents,

      provided such procedures or services are within the scope of the dentist's professional license;

      1. COVERED MEDICAL - SURGICAL SERVICES

         A. 100% of the actual charge for medically necessary inpatient/outpatient physician, physical therapist or nurse anesthetist services shall be paid when ordered by a physician for the treatment of an insured as a result of a covered accident or illness subject to the provisions of Section VI; however, such payment shall not exceed the maximum amount permitted under the AFS. 3/

      2. OTHER COVERED SERVICES The Plan shall pay 80% of the

      charge for the following medically necessary services when ordered by a physician for the treatment of an insured as a result of a covered accident or illness.

      Payment shall be subject to the provisions of Section VI and shall not exceed 80% of the Administrator's reasonable and customary schedule:

      * * *

      D. Rental of trusses, braces or crutches; however, no shoe build-up, orthotic,

      shoe brace or shoe support shall be considered a covered expense unless the shoe is attached to a brace;

      
      

      [Section IV makes no specific reference to orthodontic braces or splints.]

      
      

      * * *

      1. EXCLUSIONS

         No payment shall be made under the Plan for the following:

         * * *

         G. Services and supplies in connection with dental work, dental treatment,

         or dental examinations unless the result of a covered accident as provided in Section VIII.B. However, non-physician services provided by a hospital, ambulatory surgical center, outpatient health care facility or skilled nursing facility in connection with dental work, treatment or examinations shall be covered in accordance with

         Section II of this Benefit Document.

         * * *

      2. LIMITATIONS

      The following limitations shall apply under the Plan:

      * * *

      B. Any dental work, dental treatment or dental examinations medically

      necessary for the repair or alleviation of damage to an insured is covered by the Plan only if such work, treatment or examination is

      (1) the result of an accident sustained while the insured is covered under this Plan and (2) rendered within one hundred and twenty (120) days of the accident, unless a written explanation from the dentist or physician is submitted within such one hundred and twenty (120) days stating the extenuating circumstances requiring treatment to be performed over a longer period of time.

      
      

9. Effective March 1, 1985, the State group health insurance benefit document was amended. According to the amendment: "The amendment shall apply only to services or supplies received by an insured on or after March 1, 1985." Of importance to this case, one of the amendments was:

   
   

   7. The provisions of Section VII, paragraph G of the Benefit Document as amended on August 1, 1984, are hereby deleted and the following language is hereby added:

   "G. Services and supplies in connection with dental work, dental treatment, or dental examinations unless the result of a covered accident as provided in Section VIII.B., except that in no case shall

   orthodontia be covered. However, non-physician services provided by a hospital, ambulatory surgical center, outpatient health care facility or skilled nursing facility in connection with dental work, treatment or examinations shall be covered in

   accordance with Section II of this Benefit Document."

   
   

   "Orthodontia" is not defined in the amended benefits document. There have been no other amendments that would be pertinent to this case.

   
   

10. Before the amendments effective on March 1, 1985, the benefit document clearly and unambiguously excluded dental treatment unless the result of a

    covered accident. (The proposed treatment is not the result of a covered accident.) Orthodontia (i.e., braces) is not specifically mentioned but orthodontia are "dental" and are excluded under Section VII.G.

    
    

11. For services or supplies received by an insured after March 1, 1985, as in this case, the pertinent amendment applies. As before, it provides that dental treatment is excluded under Section VII.G. unless the result of a covered accident under Section VIII.B. It adds, "in no case shall orthodontia be covered." The amendment serves to clarify that orthodontia (braces) are excluded dental treatment. It adds that, even if other kinds of dental work are covered under Section VIII.B., orthodontia are not.

    
    

    CONCLUSIONS OF LAW

    
    

12. Under Section 110.123(5), Florida Statutes (1987), the Respondent, Department of Administration, through its Secretary, administers the state group health insurance program, including deciding the contractual benefits to be offered and contributions to be required.

    
    

13. Once the benefits are determined and reduced to writing in the benefits documents, the State of Florida and its employees are contracting parties, and contractual disputes, such as the one that arose in this case, are decided under traditional contract principles. Specifically, the Respondent does not have the ability to interpret contractual provisions by rule or non- rule agency policy, as it would a regulatory statute or rule under ordinary principles of administrative law. Cf., e.g., McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

    
    

14. Under traditional principles of contract law, the interpretation of clear and unambiguous contractual provisions is a conclusion of law, and the interpretation of ambiguous contractual provisions is a finding of fact. See Neumann v. Brigham, 475 So.2d 1247 (Fla. 2nd DCA 1985). Under the facts of this case, the benefit documents are clear that the orthodontia recommended for Sandra Walsh are "dental" and are excluded from coverage under the State group health insurance plan.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Respondent, the Department of Administration, enter a final order denying coverage for the orthodontia recommended for Sandra Walsh.

RECOMMENDED this 18th day of March, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 18th day of March, 1988.

ENDNOTES

1/ Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 87-3820.

2/ Although Dr. Richards maintained in testimony at final hearing that the treatment was for orthopedic purposes, he called it orthodontic treatment in the course of treatment recommendations, as did Dr. Hilliard. Neither called it orthopedic treatment.

3/ After the conclusion of the evidence, the petitioners moved to amend the pleadings to make a claim for portions of Dr. Richards' and Dr. Hilliard's bills not paid by insurance. The Respondent objected. The attempted amendment came too late, and the motion is hereby denied.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3820

To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact:

1. Petitioner's Proposed Findings of Fact.

   
   

   1. Accepted and incorporated.

   2. Rejected as contrary to facts found. 3.-6. Accepted and incorporated.

   
   

2. Respondent's Proposed Findings Of Fact.

1.-8. Accepted and incorporated, along with other findings, to the extent necessary.

COPIES FURNISHED:

Arthur C. Fulmer, Esquire

P. O. Box 2958 Lakeland, Florida 33806

Augustus D. Aikens, Jr., Esquire 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: 87-003820

Orders for Case No: 87-003820