STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LURETHA P. LUCKY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6940

)

DEPARTMENT OF MANAGEMENT ) SERVICES, DIVISION OF STATE ) EMPLOYEES' INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 18, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Luretha Lucky

10430 Southwest 162nd Terrace Miami, Florida 33157

For Respondent: Augustus D. Aikens, Jr., Esquire

Department of Management Services Division of State Employees' Insurance Benefit Programs and Legal Services 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876

STATEMENT OF THE ISSUE

Whether Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 should be denied on the ground that said claim was not timely filed with Department of Management Services, Division of State Employees' Insurance (hereinafter referred to as the "Department")?

PRELIMINARY STATEMENT

By letter dated November 22, 1993, Petitioner requested a formal administrative hearing on the propriety of the Department's preliminary determination to deny, on the ground of untimeliness, her "Claim for Payment/Reimbursement [Claim No. 51081792] for expenses incurred during [her] period of coverage for 1992." On December 6, 1993, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

A formal hearing on the matter was scheduled for March 18, 1994. At the outset of the hearing, the Hearing Officer was advised that Claim No. 51081792 had been resolved, but that another reimbursement claim of Petitioner's, Claim No. 34092993, which the Department had also initially deemed to have been untimely filed to the extent that it sought reimbursement of medical expenses incurred in 1992, was still outstanding. Although Petitioner, by letter dated November 28, 1993, had requested a formal hearing on the issue of the timeliness of Claim No. 34092993, the matter had never been referred by the Department to the Division. Notwithstanding the absence of any such prior referral, the parties agreed that the Hearing Officer should conduct such a formal hearing in lieu of the formal hearing that had been scheduled on Claim No. 51081792. In the interest of avoiding any further delay, the Hearing Officer complied with the parties' wishes.

At the March 18, 1994, hearing conducted by the Hearing Officer on the issue of the timeliness of Claim No. 34092993, two witnesses testified: David Griffith, a Personnel Services Supervisor with the Department, and Respondent. In addition to their testimony, a total of 14 exhibits (Respondent's Exhibits 1 through 14) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on March 18, 1994, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 10 days following the conclusion of the hearing. On March 28, 1994, the Department filed a proposed recommended order containing proposed findings of fact and conclusions of law. These proposed findings of fact and conclusions of law have been carefully considered by the Hearing Officer. The proposed findings of fact are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post- hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Petitioner is now, and has been at all times material to the instant case, a participant in the State of Florida Flexible Benefits Plan (hereinafter referred to as the "Plan") with an established Medical Reimbursement Account.

   
   

2. The following were among the medical expenses incurred by Petitioner and members of her immediate family during the 1992 calendar year:

   
   

   DATE	TYPE OF SERVICE	AMOUNT
   6/29/92	Dental	$70.00
   7/9/92	Dental	$310.00
   7/11/92	Endodontic	$450.00
   7/17/92	Optical	$266.75
   7/22/92	Dental	$500.00
   7/27/92	Optical	$84.70
   8/19/92	Optical	$416.50
   12/29/92	Dental	$210.00

   
   

3. In August of 1992, Hurricane Andrew ravaged parts of South Florida.

   
   

4. Petitioner's residence was extensively damaged by the storm. Most of the contents of the residence, including medical records and receipts, were destroyed.

5. Petitioner and her family were forced to vacate the premises.

   
   

6. They packed their remaining belongings and moved to another location in Dade County, with the intention of returning to their home once the damage to the structure had been repaired. As of the date of the hearing in this case, all of the necessary repairs to the home had yet to be made and therefore the family had not moved back in.

   
   

7. Petitioner and the other members of her family were among those residents of South Florida whose lives were significantly disrupted by the hurricane and the destruction and devastation it caused

   
   

8. In the aftermath of the hurricane, Petitioner directed her energies toward obtaining a return to normalcy in her life. Although she realized that there were medical expense reimbursement claims that she needed to file with the Department, filing these claims was not a priority of hers. She focused her attention on other matters that she considered to be more deserving of her time given her situation.

   
   

9. In January or February of 1993, Petitioner telephoned the Department to inquire if extensions of time for filing reimbursement claims were being given to Plan participants, such as herself, who were still suffering from the consequences of Hurricane Andrew. The person to whom Petitioner spoke advised her that such extensions were indeed being given. Based upon what she had been told by this Department representative, Petitioner reasonably believed that she would be able to file reimbursement claims for 1992 medical expenses after March 1, 1993, without having these claims rejected on the ground that they had been untimely filed. She therefore felt that there was no urgency with respect to the filing of these claims and she acted accordingly.

   
   

10. Shortly after gathering all of the supporting documentation she believed she needed, 1 Petitioner, on September 29, 1993, filed a claim with the Department requesting that she be reimbursed from her Medical Reimbursement Account for the medical expenses enumerated in Finding of Fact 2 of this Recommended Order. The Department designated the claim as Claim No. 34092993.

    
    

11. Petitioner also sought reimbursement, through the filing of this claim, of certain medical expenses incurred in 1993, including $140.00 for dental work that Petitioner had inadvertently indicated on the claim form had been performed in July of 1992. The work had actually been done in July of 1993.

    
    

12. By letter dated October 8, 1993, the Department advised Petitioner that "[o]nly expenses for services rendered during the January 1, 1993 through December 31, 1993 plan year are eligible for reimbursement" and that "[s]ince [her] 1992 expense does not fall within this plan year, it is not reimbursable."

13. Petitioner responded to this advisement by sending the following letter, dated November 28, 1993, to the Department:

    
    

    This is a petition or application requesting a formal hearing on my Claim #34092993 for Payment/Reimbursement for expenses incurred during my period of coverage for 1992. This Claim was denied.

    
    

    My Name is: Luretha F. Lucky

    My Address is: 10430 S.W. 162nd Terrace (temporary)

    Miami, Florida 33157

    My permanent address is: 10361 S.W. 139th Street

    Miami, Florida 33176

    
    

    I am employed at Florida International University, Miami, Florida 33199.

    
    

    I filed my claim late because my home was severely damaged when hit [b]y Hurricane Andrew, August 24, 1992. In addition, the content[s] in my home w[ere] destroyed, therefore, it took awhile for me to collect documentation for my claim from medical personnel. Also, I had to move and the few items saved were packed away. Lastly, I called the Department of Management Services,

    Division of State Employees' Insurance to

    inform them of what had happened to me and asked if . . . they were providing extensions on submitting claims. I was told they were.

    My mistake was not asking and recording the name of the person with whom I spoke. As you can see from my temporary address, I am still not back in my home! In fact we just

    settled (with the assistance of the Insurance Commissioner's Office) with our insurance company to complete the work on our home.

    We had to request an extension on filing our income tax for 1992.

    
    

    This past year has been an awful experience for us, and I do hope you will provide me a hearing on my reimbursement.

    
    

    My Claim # is: 34092993.

    
    

    The decision that my claim was denied was received by regular mail.

    
    

    Thank you very much for considering my request.

    CONCLUSIONS OF LAW

    
    

14. Section 110.161, Florida Statutes, authorizes the Department "to establish a pretax benefits program for all employees [filling an authorized and established position in the executive, legislative, or judicial branch of the state] whereby employees would receive benefits which are not includable in gross income under the Internal Revenue Code of 1986."

    
    

15. The statute mandates that the program "be implemented in phases" and that the program's second phase "allow employees to voluntarily establish expense reimbursement plans from their salaries on a pretax basis to pay for qualified medical . . . expenses."

    
    

16. It further provides that the Department "shall develop rules for the pretax benefits program."

    
    

17. Pursuant to the authority vested in it by Section 110.161, Florida Statutes, the Department has established a pre-tax benefits program which, among other things, "allow[s] employees to voluntarily establish expense reimbursement plans from their salaries on a pretax basis to pay for qualified medical . . . expenses." Petitioner is a participant in the program and has established a medical expense reimbursement account.

    
    

18. The Department has also adopted rules relating to the program. These rules are found in Rule Chapter 60P-8, Florida Administrative Code, and include the following provisions:

    
    

    60P-8.002 Statements of Policy

    1. All participants' contributions to reimbursement accounts under the Plan shall be made by salary reduction . . .

       60P-8.0042 Coverage Period. In general,

       the Coverage Period shall be the Plan Year. . .

       60P-8.006 Submission of Claims for Reimbursement

       1. Prior to the reimbursement of any claim, the participant shall complete the Reimbursement Account Claim Form FB-3,

          revised 10/90, hereby incorporated by reference

          . . . . This form must be accompanied by receipts or statements from a third party documenting that the expense has been incurred and showing the amount of such expense. Expenses shall be reimbursed

          only in accordance with the level of benefits in effect at the time the expense was incurred. Expenses shall be deemed incurred at such time that the services are rendered

       2. Claims for payment or reimbursement for expenses incurred during a participant's period of coverage must be received at the Division of State Employees' Insurance no later than March 1 following the year in

       which the applicable Plan Year closes 60P-8.0061 Availability of Funds

       (1) For any Plan Year beginning December 1, 1990 and thereafter, funds from a Medical Reimbursement Account shall be immediately

       available to a participant for reimbursement of allowable medical expenses up to the amount of the participant's annual election reduced by the amount of any previous reimbursements for that Plan Year, regardless of the current account balance. . . .

       60P-8.007 Forfeiture of Unused Benefits. Following final payment of expenses incurred during the applicable period of coverage, any amounts remaining in a participant's

       account shall be forfeited by the participant and deposited in the Pretax Benefits

       Trust Fund.

       
       

19. The Department has heretofore taken the position that it is foreclosed from considering Petitioner's claim for reimbursement of the 1992 medical expenses enumerated in Finding of Fact 2 of this Recommended Order because Petitioner did not file her claim with the Department on or before March 1, 1993, as required by Rule 60P-8.006(2), Florida Administrative Code.

    
    

20. The March 1 filing deadline established by Rule 60P-8.006(2), Florida Administrative Code, however, like the twenty- day time limitation for appealing an agency determination of abandonment of position that was analyzed by the Florida Supreme Court in Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988), "is not jurisdictional in the sense that failure to comply is an absolute bar to [Department consideration of the matter] but is more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Id. at 1133, n.2.

    
    

21. In Machules, the Florida Supreme Court made the following observations regarding the doctrine of equitable tolling:

    
    

    The doctrine of equitable tolling was

    developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitation period. The tolling doctrine is used in the interests of justice

    to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which "'focuses on the

    plaintiff's excusable ignorance of the limitations period and on (the) lack of prejudice to the defendant." Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee

    with a reasonably prudent regard for his rights. As Judge Zehmer notes in his dissent below:

    "The doctrine (of equitable tolling) serves to ameliorate harsh results that sometimes flow from a strict, literalistic

    construction and application of administrative time limits contained in statutes and rules."

    Although there is no Florida decision pertaining to the application of the tolling doctrine in administrative proceedings, federal

    courts have applied it in many differing contexts.

    
    

    Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some

    extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum. Other

    courts have recognized the doctrine but refused to apply it under the circumstances.

    
    

    Id. at 1133-34 [Citations and footnotes omitted.] Having made the foregoing observations, the Court proceeded to "find the doctrine of equitable tolling applicable under the facts of [Machules'] case for two reasons," one of which was that "Machules was misled or lulled into inaction by his Employer."

    
    

22. Similarly, in the instant case, Petitioner "was misled or lulled into inaction" by the Department representative with whom she spoke over the telephone in January or February of 1993. Petitioner reasonably believed, based upon what the Department representative told her, that, as a victim of Hurricane Andrew, she did not have to meet the March 1, 1993, filing deadline in order to obtain reimbursement of medical expenses incurred during the 1992 calendar year. As a result, notwithstanding that she had "a reasonably prudent regard for [her] rights" to such reimbursement, she waited until after the expiration of the deadline to file her claim. Given the Department's role in Petitioner's failure to file her claim by March 1, 1993, the Department should apply the doctrine of equitable tolling and deem Petitioner's claim to have been timely filed and therefore subject to consideration on its merits, particularly inasmuch as there would be no apparent prejudice to the Department in doing so. 2/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

RECOMMENDED that the Department enter a final order finding Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 to have been timely filed and therefore subject to consideration on its merits.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April, 1994.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings 15th day of April, 1994.

ENDNOTES

1/ The health care providers Petitioner contacted had no difficulty in providing her with the documentation she requested from them. Unlike Petitioner, they suffered no destruction of any of their records as a result of Hurricane Andrew.

2/ It should further be noted that the funds from which Petitioner seeks reimbursement are monies that Petitioner herself contributed to her account from her earnings as a state employee.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6940

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal:

1-7. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. First, second and third sentences: Rejected as findings of fact because they are more in the nature of statements of law that purport to describe the contents of certain Department rules; Fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Rejected as a finding of fact because it is more in the nature of a statement purporting to summarize the position taken by Petitioner in this proceeding; Second sentence: Accepted and incorporated in substance; Third sentence: To the extent that this proposed finding states that Petitioner did not "collect the necessary documentation" until October, rather than September, of 1993, it has been rejected because it is contrary to the greater weight of the evidence.

3. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument.

4. Rejected as a finding of fact because it is more in the nature of legal argument.

COPIES FURNISHED:

Luretha Lucky

10430 Southwest 162nd Terrace Miami, Florida 33157

Augustus D. Aikens, Jr., Esquire Department of Management Services Division of State Employees' Insurance Benefit Programs and Legal Services 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876

William H. Linder, Secretary Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Paul A. Rowell, Esquire General Counsel

Department of Management Services Knight Building, Suite 312

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-006940

Orders for Case No: 93-006940