STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS PARMAR, )

)

Petitioner, )

)

vs. ) Case No. 99-1523

) DEPARTMENT OF MANAGEMENT ) SERVICES, DIVISION OF STATE ) GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before the Division of Administrative Hearings, by its duly-assigned Administrative Law Judge, Stephen F. Dean, on June 25, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Francis Parmar, pro se

Post Office Box 88752 Atlanta, Georgia 30356

For Respondent: Jill Ghini, Assistant General Counsel

Department of Management Services 4050 Esplande Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Although Petitioner did not identify a specific issue on which he sought resolution, and failed to request any specific remedy, counsel for the Respondent offered the following interpretation of the issue: whether the Petitioner is entitled to retroactive enrollment in the State of Florida Group Health

Self Insurance Plan for any time during the period October 16, 1997 through February 13, 1998.

PRELIMINARY STATEMENT

Petitioner filed a request for Formal Hearing which was forwarded to the Division of Administrative Hearings. Pursuant to notice, this cause came on for formal hearing before

Stephen F. Dean, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on June 25, 1999, in Tallahassee, Florida. At the hearing the Petitioner represented himself and offered no other witnesses. Testifying on behalf of the Respondent were Patsy Kinsey, Personnel Services Specialist with the Department of Labor and Employment Security; Merrill Moody, Assistant Director of the Division of State Group Insurance; and Loraine Irvin, Senior Personnel Manager with the Department of Management Services. Respondent introduced 6 Exhibits which were received into the record. The Petitioner offered no exhibits. The Administrative Law Judge took official notice of Sections 110.123, 110.203, and 110.217, Florida Statutes, and Rules 60K-4.0021, 60K-4.003, 60P-1.003, 60P-2.002,

and 60P-2.010, Florida Administrative Code.

At the conclusion of the hearing, the Administrative Law Judge instructed the Petitioner to provide within sixty (60) days copies of medical bills documenting the expenses for which he sought insurance coverage together with any proof of coverage.

A videotaped recording of the proceedings was filed on June 29, 1999. The Petitioner submitted no documentation whatsoever following the hearing. On November 4, 1999, the Administrative Law Judge issued an order granting the Respondent's Motion to Close the Record, and ordered the parties to file any proposed findings of fact no later than November 22, 1999. Respondent filed a Proposed Recommended Order on November 22, 1999, which has been considered.

Based upon all of the evidence, and the stipulations of the parties, the following findings of fact and conclusions of law are determined.

FINDINGS OF FACT

1. Petitioner was employed by the Florida Department of Labor and Employment Security from October 16, 1997 through February 13, 1998; and by the Department of Business and Professional Regulation from February 20, 1998 through March 26, 1998. Respondent's Exhibits 1-6.

2. During all relevant times, the Division of State Group Insurance was responsible for contract management and day-to-day management of the state employee health insurance program, which contains various insurance options. Section 110.123(3)(d), Florida Statutes.

3. Merrill Moody, Assistant Director of the Division of State Group Insurance (hereafter the "Division") testified. According to his agency's interpretation of the relevant rules

   and statutes, neither the Division nor an employing agency is responsible for making certain that employees timely enroll in an insurance plan in which they wish to subscribe. Approximately 30,000 employees per year opt not to enroll in a state insurance plan. The state plans, like public insurance companies, require that the enrollee file the necessary enrollment forms. Mr. Moody testified that the Division does not waive the 60-day filing deadline for insurance enrollment of new employees imposed by Rule 60P-2.002, Florida Administrative Code, because to do so would subject the Division to federal penalties, and would risk the pre-tax status of the plan.

4. The Petitioner did not allege that he was misinformed about what forms were required to be filed in order to enroll in an insurance program. He also did not dispute the validity of the 60-day enrollment period for new employees.

5. Patsy Kinsey, a Personnel Services Specialist of the Department of Labor and Employment Security (hereafter "DLES") testified. Although employees were not required to file a statement declining insurance coverage when they did not wish this benefit, she specifically remembered having discussed insurance enrollment requirements with the Petitioner. He first complained about his lack of insurance in May of 1998, more than

   6 months after he began employment with DLES and more than 3 months after leaving that Department to begin working for the Department of Business and Professional Regulation (hereafter

   "DBPR"). Petitioner admitted to her that he had not enrolled in an insurance plan with the State at any time during his employment with DLES. Ms. Kinsey remembered that the Petitioner informed her that he elected not to enroll because he had Medicaid coverage, and did not consider the additional coverage necessary.

6. Ms. Kinsey personally authored the June 19, 1998, letter introduced as Respondent's Exhibit 3, for Ms. Louise Lambert's signature. While preparing the letter, Ms. Kinsey verified with another DLES employee, Ms. Angela Gray, that the Petitioner had actually declined insurance coverage during his 60-day enrollment period.

7. Mr. Parmar testified that he did not have a copy of any form on which he claimed to have requested insurance coverage within the first 60 days of his eligible employment with DLES. Petitioner testified that he had filed such a form. Petitioner also testified that he kept copies of all important documents. Petitioner was permitted to file evidence of coverage after the hearing as a late-filed exhibit, but did not do so.

8. The Petitioner denied having told Ms. Kinsey or anyone at DLES that he did not wish to enroll in an insurance plan.

9. Mr. Moody testified that Petitioner received notice on each paycheck that insurance costs were not being deducted. Insurance cards are mailed out to all new enrollees.

10. The Petitioner's statements conflict with Ms. Kinsey's statement that the Petitioner admitted to her that he had not filed the enrollment form during his enrollment period, and with the testimony of Ms. Kinsey and Mr. Moody, who each stated that employing agencies enter enrollment information into the system as a matter of course.

11. The Petitioner did not complain about his lack of insurance until approximately six months after he began his full- time with DLES, at which time he could not be covered until the next open enrollment period.

12. The Department of Management Services (DMS) is responsible for developing uniform rules to implement Section 110.217, Florida Statutes, regarding such issues as appointments and reassignments.

13. According to Rule 60K-4.003(2), Florida Administrative Code, a change in employing agencies within the Career Service System is not considered a new appointment when not more than 30 days elapse between the separation form the first agency and the beginning of work with the new agency. It is considered a reassignment appointment.

14. Rule 60P-2.010(1), Florida Administrative Code, states that "(a) change from one state agency does not constitute new employment; therefore, enrollment or coverage eligibility does not change."

15. Loriane Irvin, Senior Personnel Manger at DMS, testified regarding her agency's interpretation of its rules. She testified that according to Rules 60K-4.0021 and 60K- 4.003(2), Florida Administrative Code, Petitioner's leaving employment with DLES and beginning employment with DBPR less than

    30 days later is not considered a new appointment. Therefore, Petitioner was not eligible to enroll after he changed jobs.

16. Merrill Moody testified regarding the interpretation of Rule 60P-2.002(a), Florida Administrative Code. Employees are permitted to make enrollment changes "during the first sixty (60) calendar days of state employment or a new term of office."

    Rule 60P-2.002(c), Florida Administrative Code, entitles employees to make enrollment changes within 31 days after experiencing a "qualifying status change of losing other group health coverage." 1/

17. Ms. Irvin confirmed Mr. Moody's statement regarding the Agency's interpretation of Rule 60P-2.002, Florida Administrative Code, concerning the Petitioner's change of agencies in February of 1998. According to the Agency's interpretation, a reassignment neither begins an employee's term of state employment, nor does it begin a "new term of office."

18. If the Petitioner sought insurance coverage for medical costs he had incurred, he had to submit invoices documenting such costs within 60 days of the hearing pursuant to the post-hearing order. The Administrative Law Judge informed Petitioner at the

    hearing that without evidence of the medical treatments rendered and the corresponding costs incurred, a determination could not be made as to the damage suffered by the Petitioner. 2/

19. If retroactive coverage were ordered, as a result of this proceeding, the Petitioner would have to submit all of the required premiums for the remainder of the year in which he had enrolled in insurance coverage as a pre-requisite for reimbursement. This amount would depend on whether individual or family coverage were selected, and the premiums could exceed the amount of reimbursement to which an insured might be entitled for medical costs. Mr. Moody explained that not all medical procedures are covered under any insurance plan offered by the State, and that 100 percent of covered costs are paid according to the plans.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Subsection 120.57(1), Florida Statues.

21. Authority to administer the plan is given to the Division by Section 110.123, Florida Statues. Section 110.123(3)(d), Florida States, holds the Division responsible for the day-to-day management of the State Employee Insurance Program, including, among other things, enrollment.

22. Petitioner has the burden to show he is entitled to coverage and establish his losses. Petitioner also must show

    that he has standing under the Administrative Procedure Act which requires Petitioner to have an injury caused by Respondent of the type the statute is designed to protect. Ameristeel Corporation v. Clark, 691 So. 2d 473 (Fla. 1997); Agrico Chemical Company v. Department of Environmental Regulation, 406. So. 2d 478 (Fla. 2nd DCA 1981), review denied sub nom; Freeport Sulphur Company v.

    Agrico Chemical Company, 415 So. 2d 1359 (Fla. 1982); Fairbanks, Inc. v. State, 635 So. 2d 58 (Fla. 1st DCA 1994).

23. Petitioner did not show that he suffered an injury due to the Respondent's actions or inaction. Although he testified that he incurred medical costs which he believed would have been covered by insurance, he failed to submit any documentation of such costs or the procedures performed. Not all procedures are covered expenses. Petitioner would have to pay his premiums if it were determined he was eligible for coverage. It cannot be determined if the Petitioner suffered any monetary or other injury.

24. The Petitioner was entitled to enroll in a state- sponsored insurance program within 60 days of his hire date as a full-time employee with DLES on October 16, 1997, according to Rule 60P-2.002(1)(A), Florida Administrative Code.

25. The Petitioner did not enroll in a state-sponsored insurance program within the first 60 days after his hire date of October 16, 1997. The Petitioner submitted no evidence of enrollment. The testimony of the Respondent's witnesses, along

    with the Respondent's exhibits which are accepted, indicates that the Petitioner failed to enroll for insurance coverage within the

    60 day enrollment period.

    
    

26. The Petitioner was not entitled to another enrollment period when he was reassigned to employment with DBPR on February 20, 1998. Rules 60K-4.0021 and 4.003(2); 60P-2.002(c) and 60P-1.003(17), Florida Administrative Code. A reassignment

appointment such as that of the Petitioner in February of 1998 is not a new appointment. A reassignment appointment is not a qualifying status change. Therefore, the Petitioner was not entitled to a new enrollment period when he changed employment from DLES to DBPR. The Petitioner did not establish any other basis for insurance enrollment. Petitioner testified that he was employed and requested coverage. Petitioner did not present any documentary evidence he was covered, although he was afforded the opportunity to do so. It is therefore concluded that Petitioner did not request coverage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is proposed that a final order be entered dismissing the petition and confirming the denial of insurance coverage sought by Petitioner dating back to October 16, 1997, and extending through February 13, 1998.

DONE AND ENTERED this 16th day of December, 1999, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1999.

ENDNOTES

1/ Although Petitioner may have been eligible because of loss of other group coverage, he offered no evidence regarding the date of loss coverage.

2/ The opportunity was afforded to Petitioner to file evidence of claims and evidence of coverage as late-filed exhibits.

Petitioner did not do so.

COPIES FURNISHED:

Francis Parmar

Post Office Box 88752 Atlanta, Georgia 30356

Jill Ghini, Assistant General Counsel Department of Management Services 4050 Esplande Way, Suite 260

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary Department of Management Services 4050 Esplande Way

Tallahassee, Florida 32399-0950

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplande Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 99-001523

Orders for Case No: 99-001523