CAROL A. LENGWIN, )
vs. ) CASE NO. 90-2678
Respondent. )
The final hearing in this case was held on June 27, 1990, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Carol A. Lengwin
880 Mandalay Avenue Apt. S-504
For Respondent: Augustus D. Aikens, Jr., Esquire
The issue in this case is whether the Department of Administration (Respondent) should approve the application of Carol A. Lengwin (Petitioner) for enrollment in the State Employees' Health Plan.
At the hearing, the Petitioner testified on her own behalf, and the Respondent called Patricia Beckey, personnel technician III with the Division of State Employees' Insurance. Three exhibits were introduced by the Respondent, and official recognition was taken of Rules 22K-1.201 and 1.202, Florida Administrative Code.
No transcript of the hearing was filed. The Petitioner filed a letter following the hearing which is striken and cannot be considered since it does not evidence that a copy was provided to counsel for the Respondent. The Respondent did not file any post-hearing memoranda or a proposed recommended order.
On or about June 20, 1989, the Petitioner began her employment with the Department of Health and Rehabilitative Services (DHRS) as a public assistance specialist. She was placed in OPS (other personal services) status, and was not initially a part of the career service system. Petitioner successfully completed her training program on October 5, 1989, and became eligible for placement in a classified career service position.
While still in OPS status in early October, 1989, Petitioner was assigned to work in the Clearwater office of DHRS. She asked her supervisor, Joette Chamberlain, on several occasions when she would be placed in a career service position, but was told she would have to wait until her supervisor was informed, and she would then be advised by her supervisor when she could go to the DHRS personnel office in St. Petersburg to fill out the necessary papers for placement in a career service position.
Petitioner was very anxious to be placed in a career service position so that she could receive benefits,
including participation in the state employees' health insurance program. However, she also wanted to work through the proper chain of command, and so awaited advise from her supervisor concerning her appointment to the career service.
On November 8, 1989, a letter was sent to Petitioner by regular mail from O. M. Fuller, Administrative
Assistant II with DHRS, advising her that she was being appointed to the career service position of public assistance specialist II, with an effective date of October 27, 1989, and that she should report to the DHRS personnel office in St. Petersburg on November 21, 1989, for payroll sign up.
Petitioner never received the November 8 letter.
She credibly denied ever receiving this letter, and no proof that the letter was received was introduced by the Respondent. In fact, Petitioner's denial is supported by the undisputed fact that in late 1989 her address was changed from Clearwater Beach to Clearwater, and her zip code was changed from 33515 to her current zip code of 34630. She has not moved her residence during this time, but the post office has changed her address in this manner for purposes of mail delivery. The November 8 letter was sent to her using the Clearwater Beach address with a zip code of 33515, instead of using her changed city and zip code designations.
Prior to her November 21 sign up date, Petitioner
was not advised by her supervisor that she was being placed in a career service position and that she should go to the personnel office in St. Petersburg on November 21 for payroll sign up.
Instead, when she again asked her supervisor about the status of her appointment to a career service position in mid November, she was told that her supervisor would have to check on it and get back to her.
Eventually, in late November or early December,
1989, her supervisor advised her that she should go for payroll sign up on December 5, 1989, which she did. When she arrived for payroll sign up, Petitioner was told by DHRS personnel that since she had missed the November 21 sign up date, and since her appointment to career service was being made retroactive to October 27, 1989, she was then beyond a thirty-one day period within which open enrollment for the state employees' health insurance program is allowed for new appointees to the career service. As a result, she was told that she could not sign up for state employees' health insurance and would have to wait until the next open enrollment period.
According to a letter introduced in evidence by the Respondent dated February 21, 1990, from Jean K. Stabler, personnel technician III for DHRS to Patricia Beckey with the Division of State Employees' Health Insurance, Petitioner was not made aware of the thirty-one day deadline for health insurance open enrollment prior to her payroll sign up on December 5, 1989. The various health insurance options and benefits are explained at payroll sign up, and employees are provided the necessary form to make their selection of appropriate coverage.
At no time did Petitioner ever request a
retroactive appointment to her career service position. Rather, it appears from an inference drawn from Petitioner's letter dated February 5, 1990 to the Director of the Division of State Employees' Insurance, which was introduced in evidence by the Respondent, that this retroactive appointment was made for the convenience of DHRS due to a hiring freeze that went into effect in November, 1989.
On February 5, 1990, Petitioner requested a review of this matter by the Director of the Division of State Employees' Insurance, and on March 6, 1990, her request for
enrollment in the state employees' health insurance program was denied by the Director based upon Rules 22K-1.202(1) and (2) since, according to the Director, she did not apply for enrollment during her first thirty-one days of State employment. Thereafter, Petitioner timely sought the Respondent's review of this decision, and on April 30, 1990, the Respondent transmitted this matter to the Division of Administrative Hearings for hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. As the party seeking to enroll in the state employees' health insurance program, the Petitioner is seeking the affirmative of the issue in this case, and therefore, has the burden of proof. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
Rule 22K-1.202, Florida Administrative Code, provides that:
An employee may apply for enrollment in the Health Plan . . . by completing and submitting the Health Care Option Selection form and a
New Enrollee form to his or her personnel office during the first thirty-one (31) calendar days of State employment . . .
An employee may only apply for enrollment in the Health Plan . . . after the first thirty-one
(31) calendar days of employment by completing and submitting the Health Care Option Selection form and a New Enrollee form to his or her
personnel office during the open enrollment period.
The clear intent and effect of this rule is to allow a new employee thirty-one days after appointment to a career service position within which to select the appropriate state employee health insurance program for that employee. Surely, it can only reasonably be presumed that such employee is informed of, and knows of, his or her appointment to the career service, and then is given this period of time after appointment to consider the various health care options that are available, discuss them with family, co-workers, and health care providers, and then make an informed decision.
There is no evidence in the record of this case, or in any statute or administrative rule relied upon in this proceeding which gives any agency the authority to shorten, or in any way modify, this thirty-one day period. Yet, this is precisely what DHRS did when it sent Petitioner a letter on November 8 stating that she had been retroactively appointed to the career service on October 27, 1989.
This retroactive appointment, which Petitioner did not request or even know about, had the effect of depriving her of twelve of the thirty-one days within which to enroll in a state employee health insurance program, even if she had received this letter by hand delivery on Novmber 8. When the Respondent, by administrative rule, prescribes a clear and certain period of time within which new employees can consider health care options and select an appropriate coverage for themselves and their families, it is not an insignificant deviation from that rule when an agency shortens that allowed time period by almost 39%.
Recognizing that DHRS in this case did not attempt hand delivery of this letter, or even a phone call to the Petitioner, but rather relied on regular mail delivery, the loss to Petitioner of an additional three to five days would also have resulted, had this letter even been received. Therefore, assuming that DHRS' November 8 letter had been properly delivered to Petitioner in three days on November 11, a Saturday, Petitioner would have had only sixteen, not thirty-one, days within which to make an informed decision.
Yet, the practice followed by DHRS in this case represents an even more significant deviation from Rule 22K-
1.202. The November 8 letter prescribes a November 21 payroll sign up date when, among other things, the various health care options are explained and necessary forms provided to select appropriate coverage. Starting on October 27, her retroactive appointment date, the thirty-one day period would have expired on November 27, 1989. Thus, if Petitioner had received the November
8 letter and reported for payroll sign up on November 21, 1989, she would have had six, not thirty-one, days to make her selection of appropriate health insurance, and would, thus, have been deprived of 81% of the time allowed by Respondent's rule in which to make her health care choice.
The actions of DHRS, under the facts established by this record, represent a significant deviation from the requirements of Rule 22K-1.202, Florida Administrative Code, resulting in the arbitrary and unauthorized deprivation of Petitioner's right to a full thirty-one day enrollment period.
An agency's decision to make appointments to the career service retroactive, even assuming such action is authorized by some rule or statute not cited in this case, cannot work to the detriment of new employees, especially when, as here, the new employee does not receive notice of her retroactive appointment until her thirty-one day period is almost expired, and is then given a payroll sign up date which is, in fact, more than thirty-one days after her retroactiove appointment date.
Therefore, under the facts of this case, it is concluded that Petitioner was never given an appropriate opportunity to enroll in the state employee health insurance program upon her appointment to the career service.
Respondent enter a Final Order which allows Petitioner to enroll in the State Employees' Health Plan effective, at the election of the Petitioner, either: (1) Thirty-one (31) days after the entry of this Final Order; or (2) On December 5, 1989, upon the payment of all required employee premiums which otherwise would have been collected from the Petitioner for said coverage from December 5, 1989, after which benefits for claims arising on or after December 5, 1989, shall be timely paid upon the filing of appropriate claim forms and information by the Petitioner.
DONALD D. CONN
Carol A. Lengwin 880 Mandalay Avenue
Apt. 5-504
Augustus D. Aikens, Jr., Esquire
Aletta Shutes, Secretary Dept. of Administration
