STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TERRY RHINES,
Petitioner,
vs.
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE GROUP INSURANCE,
Respondent.
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) Case No. 07-2352
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was convened in this cause on August 1, 2007, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Terry Rhines, pro se
849 Piney Village Loop Tallahassee, Florida 32399
For Respondent: Sonja P. Mathews, Esquire
Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260
Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES
Whether Petitioner is entitled to any reimbursement of insurance premiums because he was mis-informed or inadequately
informed concerning his opportunities to sign-up for the Spouse Program within the State of Florida’s Group Insurance Program.
PRELIMINARY STATEMENT
Petitioner disputed his non-enrollment in the State Group Insurance Spouse Program and the cause was referred by the Department of Management Services, Division of State Group Insurance, to the Division of Administrative Hearings on or about May 29, 2007.
At the final disputed-fact hearing, held August 1, 2007, Petitioner presented the oral testimony of Elisa Michelle Floyd, Celia White-Rhines, and Willie E. Fedd, Jr., and testified on his own behalf. He had three exhibits admitted in evidence.
Respondent presented the oral testimony of Sandie Wade, Valeria Jefferson, Michele Toucet, Elisa Michelle Floyd, and Verla Lawson, and had 20 exhibits admitted in evidence.
No transcript was provided.
Both parties were granted until September 7, 2007, in which to file their respective proposed recommended orders. Only Respondent timely filed a proposal, which proposal has been considered in preparation of this Recommended Order.
The parties' Joint Pre-hearing Statement [sic stipulation] also has been utilized in preparation of this Recommended Order. In most instances, its stipulated facts have been adopted, with minor modifications for grammar, clarity, and/or style, without
changing their meaning. Any substantial deviation from the language of the stipulations has been explained in an endnote.
FINDINGS OF FACT
The "Spouse Program" is an insurance benefit available through the State Group Insurance Program, whereby the State employer pays the total health insurance premium for married couples, if both marital partners are State employees. Petitioner has alleged that he was affirmatively or negligently misled by the personnel liaison of his Florida Department of Health (DOH) Customer Services Unit into not applying for the Spouse Program while he was employed by DOH from October 31, 2003, to May 5, 2006.
Participation in the Spouse Program is governed by Florida Administrative Code Chapters 60P-1 and 60P-2. Participation in the Spouse Program is not automatic. Participation in the Spouse Program requires the filing of an application.
At all relevant times, Petitioner (husband) was an employee of the State and a participant in the State Group Insurance Program. (Stipulated Fact 2.)
The State Group Insurance Program exists pursuant to Section 110.123, Florida Statutes. The Division of State Group Insurance (DSGI), located within the Department of Management
Services (DMS), is the State agency responsible for administration of the State Group Insurance Program.
The State Group Insurance Program offers many types of insurance, but this case is concerned only with PP0-Blue Cross/Blue Shield coverage and HMO coverage, either of which can include individual or family coverage upon election by the employee, and either of which can include the Spouse Program as a premium payment method, if the Spouse Program is properly applied-for.
Petitioner was employed by DOH, from October 31, 2003, through May 5, 2006 (Stipulated Fact 1), in DOH’s Consumer Services Unit (CSU).
Petitioner was first hired by DOH on October 31, 2003.
At that time, Petitioner’s wife was not employed by the State.
Simultaneously with Petitioner's being hired into the CSU on October 31, 2003, CSU employee Elisa Floyd was promoted to Regulatory Supervisor/Consultant, Compliance Officer, of the CSU. In her new capacity, Ms. Floyd’s primary employment duty has been the supervision of CSU support staff, but she also has been the unit’s personnel liaison since her promotion. She spends approximately 95 percent of her time as a supervisor and approximately five percent of her time handling personnel matters. She has never been formally trained in the vast array of personnel matters that may arise. She has been instructed by
trained DOH Personnel/Human Resources Office employees and by her immediate supervisor, that her main function as the CSU’s personnel liaison is to refer employees in her unit to DOH’s Personnel/Human Resources Office. Her main involvement in personnel matters has been in answering simple questions, telling employees how to research their own answers to simple questions, and referring employees to the Agency’s Personnel/Human Resources Office for resolution of more complicated issues.
At all relevant times, DOH has maintained a Personnel/Human Resources Office staffed with knowledgeable people to handle personnel matters for its employees.
When he was hired by DOH, Petitioner was issued a “New Employee Package.” That “New Employee Package” included the Employee Guide for 2003.
In the Employee Guide for 2003, under the heading, "New Enrollment and Changes in Pre-Tax Benefits," the 2003 Employee Guide stated:
. . . There are two opportunities to enroll in, change, or cancel enrollment in the pre- tax benefit plans:
During the Annual Open Enrollment Period 2. When the enrollee or a dependent experiences a Qualifying Status Change (QSC) event. . . . Other than the unique opportunity of the Open Enrollment Period, state and federal regulations prohibit additions, changes or cancellation of enrollment in pre-tax plans unless an
enrollee experiences a certain type of change known as a "Qualifying Status Change" event or "QSC." Qualifying Status Change events include such events as a change in employment status (e.g., beginning or terminating employment with a new employer)
. . . and certain changes in personal status, (e.g. marriage, having children, or acquiring other new dependents). Enrollees must submit the appropriate forms and documentation to their Agency Personnel Offices within prescribed time periods to make benefit changes based upon the occurrence of a QSC. (Emphasis supplied)
The 2003 Employee Guide also informed employees that to participate in the Spouse Program, each spouse must contact the respective Agency Personnel Office and complete and sign a Spouse Program Enrollment Form, which was available at the DSGI website, and that employees could change their benefits election within 31 days of experiencing a QSC event, which QSC event included a change in the employment status of a spouse or the birth of a child.
The foregoing provisions of the 2003 Employees Guide (Findings of Fact 11-12) are based on Florida Administrative Code Rules 60P-1.003(17), 60P-2.002, and 60P-2.0036, which have not changed from 2003-2007.
The DSGI website address is printed on the bottom of every page of the 2003 Employee Guide.
Pursuant to rule, new hirees have had, at all times material, 60 days from their date of hire in which to decide which health insurance coverages to elect.
The evidence shows that on November 3, 2003, Petitioner, who was hired on October 31, 2003, elected to enroll in a PP0-Blue Cross/Blue Shield “family” plan, covering himself, his wife, and one child, born in 1990. (Substantial modification of Stipulated Fact 4.)1/
When Petitioner initially enrolled in the State Group Insurance Program’s PPO Plan through DOH, Part 3 of the enrollment form, which he signed, read:
I have read the information on the back of this form and I authorize my employer to reduce my salary in accordance with the benefits I have selected. I understand my enrollment and/or changes will be effective the first of the month following a full payroll deduction and that my elections are IRREVOCABLE until next open enrollment, unless I have a Qualifying Status Change as defined by the Federal Internal Revenue Code and/or the Florida Administrative Code. I understand that I must request such changes within 31 calendar days of the Qualifying Status Change. (Emphasis supplied)
Even without any QSC, such as marriage, adoption, birth of a child, or employment by the State of a spouse, State employees have an opportunity to change their state health insurance coverage annually in the autumn of each year, to take effect January 1, of the next succeeding year. This period of
selection/election of various insurances is called the “Annual Open Enrollment Period.” Therefore, without any QSC, Petitioner could have changed his election of insurance plans in the autumn of 2004, for calendar year 2005, and could have changed his election of insurance plans in the autumn of 2005 for calendar year 2006.
"People First" is DSGI’s outsourced provider of human resources (personnel) services for the State of Florida, including enrollment of employees in the various insurance plans offered by the employer. People First became available on-line via the internet, on January 1, 2004.
In August 2004, Petitioner continued to be a participant in the State of Florida self-insured PPO Plan, under the Group Health Insurance Plan Booklet and Benefits Document, effective January 2004. Petitioner continued under this PPO Benefits Document through 2005, as modified effective January 1, 2005. (Substantial modification of Stipulated Fact 3.)2/ That Benefits Document continued to advise that to participate in the Spouse Program, each spouse must complete and sign a Spouse Program Enrollment Form and that employees could change their benefits election within 31 days of experiencing a QSC event, which QSC event included a change in the employment status of a spouse or the birth of a child, plus the information that new employees had 60 days from hire to choose their insurance
coverage and that the employee should contact the People First Human Resources Service Center immediately with regard to any QSC eligibility for the Spouse Program instead of waiting for necessary documentation, since 60 days was allowed to assemble documents such as the marriage license. In 2004, this Benefits Document provided the People First internet web page address, where benefits could be viewed and insurance information could be obtained.
On August 9, 2004, Petitioner's wife was hired as a State employee by Florida Agricultural and Mechanical University (FAMU). (Stipulated Fact 6.) At that time, as a new employee, she was provided with a complete set of instructions with regard to the State’s several insurance plans and related personnel rules. She probably received the 2004 Benefits Document
referenced above.
Petitioner’s wife’s hire date by FAMU constituted a QSC, which would have entitled Petitioner and his wife to file an application to have their insurance premiums paid by the Spouse Program. Pursuant to the applicable rules, the wife, as a new employee, had 60 days from her hiring date, or until October 8, 2004, in which to file an application for the Spouse Program, but she did not do so. Also pursuant to the rules, Petitioner had 31 days from his wife’s hiring date, or until September 9, 2004, in which to file an application to convert
his State insurance to payment through the Spouse Program, but he did not do so.
At all times material, Petitioner has been a Captain in the Florida Army National Guard. On August 11, 2004, Petitioner was called up for active military duty. DOH placed him on military leave, effective that date.
Effective September 23, 2004, Petitioner’s wife signed-up for “individual” HMO coverage via the State Group Insurance Program. She testified that she did this “because I was expecting and my husband was deployed with the military”; that she did not read the State insurance brochures; and that she just signed a form sent her in the mail by one of the HMO providers. Although she actually signed a State-produced form, it appears she did not know she was already covered by Petitioner’s PPO family coverage.
On October 13, 2004, Petitioner administratively returned to active work status at DOH. However, in real world terms, Petitioner did not return to actual work at his DOH worksite until October 15, 2004, because he took annual leave for October 13-14, 2004.
Petitioner physically, as well as administratively, returned to work at DOH during the 2004 Open Enrollment period on Friday, October 15, 2004. The following Friday, October 22, 2004, ended the 2004 Open Enrollment Period for Plan Year 2005.
Petitioner filled out a Daily Activity Report showing that he worked October 15, 18-22 (except for two hours of sick leave on October 19, 2004), and 25-29, 2004.
Ms. Floyd testified credibly that on October 19, 2004, Petitioner discussed with her the fact that neither of them had yet received their one-year personnel evaluation (see Findings of Fact 7-8) and asked her if she had the information he needed to enroll in the Spouse Program. She also testified credibly that at that time she told him that she did not have that information and that it was his responsibility to contact DOH Personnel/Human Resources directly; that Petitioner then asked her if she did not care, and she replied, “No,” because he had asked and she had given him the same advice before; and that she then handed Petitioner a CD that provided instructions on how to access the People First system for personnel matters, including self-service employee-enrollment for insurance benefits via the internet.
Ms. Floyd further testified credibly that prior to leaving for active military duty on August 11, 2004, Petitioner repeatedly asked her to determine how he could join the Spouse Program; that she repeatedly told him to call Personnel/Human Relations; and that on one occasion she gave him the DOH Personnel/Human Relations Office’s phone number and told him to phone there. She also stated that prior to his return from
active military duty on October 15, 2004, he asked her, over the phone from where he was stationed, about the Spouse Program. On October 19, 2004, when he was back in the office, she told Petitioner she did not care about his Spouse Program information because she was frustrated with him for not following up to get that information on his own.
State Group Insurance Program enrollment through People First had become available via the internet on January 1, 2004. The CD Ms. Floyd gave Petitioner on October 19, 2004, explained how to contact People First over the internet. How far in advance of October 19, 2004, the People First CD existed, is not of record. However, at some point, Ms. Floyd’s supervisor had ordered her to ensure that everyone in CSU viewed the CD. Because Petitioner had been out on military leave from August 11, 2004, to October 15, 2004, he was the sole employee in the unit who had not yet viewed the People First CD, and
Ms. Floyd noted on her calendar that she gave the People First CD to Petitioner on October 19, 2004.
Petitioner filled out a daily activity report dated 10/21/04, showing that on that date he devoted two hours to the "People First Video." It may be inferred from Petitioner's activity report, that Petitioner actually viewed the People First CD for two hours on that date and that he did not just physically receive the CD from Ms. Floyd on that date.
The People First CD contains a section titled "Health & Insurance." The first screen informs the viewer that the video includes a discussion regarding "Enroll or change current benefits as a result of a life or work event." The CD also provides a telephone number for contacting a live representative at People First.
The People First CD also informs the viewer that there are events that allow changes outside of the Open Enrollment Period. These are identified on the CD as "qualifying events." The list of qualifying events includes "Marriage-Cov Effective Under Employee's Plan Add/Inc Coverage." The video also informs the viewer that the Spouse Program Enrollment Form is available on line and that the Active Employees Benefits Guide could be viewed on line or mailed to the employee.
Petitioner admitted that he viewed a CD pertaining to People First at some time, but that he did not remember the “screens” referenced above. Because there was only one People First CD produced and given to him, it seems clear that Petitioner received and viewed correct information about the Spouse Program during the Open Enrollment Period of 2004.
During Open Enrollment 2004, DOH regularly e-mailed its employees advisories regarding Open Enrollment, including the dates thereof. The e-mail notices of Open Enrollment 2004, would have been available to Petitioner upon his return to the
DOH work site on October 15, 2004. There probably were some hard copy advisories mailed to Petitioner’s home address during the 2004 Open Enrollment Period, as well. (See Finding of Fact 24.) Petitioner acknowledged that upon his October 15, 2004, return, he was overwhelmed with e-mails and did not particularly note such e-mails.
During the 2004 Open Enrollment Period, Petitioner did not contact People First by any method. He did not go to, or phone DOH's Personnel/Human Resources Office. He did not sign up for the Spouse Program before the end of the 2004 Open Enrollment Period on October 22, 2004.
The Open Enrollment Period for Plan Year 2005, during which State employees could sign-up for or change any parts of the State Group Insurance Program, spanned September 15, 2004, to October 22, 2004. (Stipulated Fact 8.) During this period, Petitioner did not make any changes in his existing state insurance coverage, and his wife only made the September 23, 2004, application for individual (not family) HMO coverage described in Finding of Fact 24, above.
On or about December 13, 2004, which was well after the 2004 Open Enrollment Period closed, a shower was given for Petitioner at the CSU office. Ms. Floyd noted the date of the shower on her calendar.
The undersigned has inferred that the December 13, 2004, shower was related to a baby that recently had been born or was about to be born to Petitioner and his wife, but no date of birth was clearly expressed at hearing.
At the shower, Willie E. Fedd, Jr., another CSU investigator, suggested to Petitioner and his wife that they apply for the Spouse Program, since they both worked for the State. Mr. Fedd only speculated that Petitioner did not know of the Spouse Program before this date.
The Petition herein specifically alleged that
Ms. Floyd told Petitioner in December 2004, that he and his wife qualified for the Spouse Program, but that he would have to wait until the next Open Enrollment Period (autumn 2005) before he could apply for the Spouse Program. Depending upon the birth date of a child resulting from the pregnancy Petitioner’s wife described as being in progress in August 2004, such advice might have been correct or incorrect.3/
More to the point, it was not proven that such a conversation, as was alleged in the Petition and in Petitioner’s testimony, had occurred in December 2004. At hearing, Petitioner first testified that he had asked Ms. Floyd for Spouse Program information before he left for military service on August 11, 2004, but upon cross-examination, Petitioner could not be sure when he had first asked this question of Ms. Floyd,
stating that they could have talked before, during, or after an Open Enrollment Period. He also testified that sometime shortly after the shower, he specifically inquired of Ms. Floyd as to what he must do to sign up for the Spouse Program. Upon reflection, Petitioner thought he must have asked Ms. Floyd about the Spouse Program after he learned of the Spouse Program through Mr. Fedd at the shower, but he was unsure of the date of the shower. Petitioner’s chronological confusion may have legitimately arisen because he was again absent from DOH for active military service from July 2005, to February 2006. His Petition reflects similar confusion about many dates.4/
Ms. Floyd denied that she ever made a representation to Petitioner that he had to wait till the next open enrollment, and did not recall any December 2004, conversation on the subject. She is the more credible witness on this point.
Petitioner's leave records show that from July 29, 2005, to February 17, 2006, Petitioner was again on active military duty/leave away from his DOH jobsite. Therefore, he was out of the DOH office during the Open Enrollment period of 2005, for calendar year 2006.
While Petitioner was on active duty during part of the 2004, Open Enrollment Period and all of the 2005, Open Enrollment Period, he had access to a telephone and computer, and insurance enrollment was available on line, even though
there is no indication in the record that his ground mail or office e-mail was forwarded to him. Petitioner conceded that he could have gone on-line to change his insurance during both these open enrollment periods. However, he admitted that he had other things on his mind, which is a very understandable situation given that he was on active military duty away from the DOH jobsite.
Petitioner and his wife never enrolled in the Spouse Program while he was employed by DOH. Petitioner never asked his wife to inquire about Spouse Program enrollment or to submit an application for it at any time she worked for the State.
Since May 8, 2006, Petitioner has been employed by the Office of the Public Defender, which also is a State agency. (Stipulated Fact 5.) On May 15, 2006, for the first time, Petitioner filed the necessary application to participate in the Spouse Program. (Stipulated Fact 7.) In doing so, he presumably took advantage of the “60 days from hiring,” window of opportunity for changing his insurance.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.
The duty to go forward and the burden of proof by a preponderance of the evidence are upon Petitioner herein.
Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996) and Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner seeks reimbursement of insurance premiums he paid for the period of August 9, 2004, when his wife became a State employee, until the date he actually filled out and filed a Spouse Program Application form in May 2006, less any amount he would have paid during the interim under the Spouse Program.
The credible evidence as a whole does not support a finding that Petitioner was ever misled by action, inaction, or misstatement by DOH, People First, or Ms. Floyd. Admittedly, Ms. Floyd was not particularly helpful to Petitioner, but the manifest weight of the evidence is credible that the State employer, through its many representatives and devices, provided numerous contact opportunities for Petitioner to get hands-on help from the DOH Personnel/Human Resources Office, from DSGI, or from People First at all stages of Petitioner's employment with DOH.
Petitioner and his wife were not eligible to file an application for the Spouse Program until she was hired by FAMU on August 9, 2004.
Petitioner was vague and vacillating as to when he asked questions about the Spouse Program, but his final best
guess was on or after December 13, 2004. The more credible evidence is that he asked such questions of Ms. Floyd repeatedly up through October 19, 2004, and that she told him each time where to get answers beyond the rules and the printed material already provided him, but Petitioner and his wife missed three windows of opportunity to sign up for the Spouse Program: 31 days from the wife’s hire for Petitioner; 60 days from her hire for the wife; and the 2004 Open Enrollment Period.
Even if Petitioner’s deployment on August 11, 2004, truncated his 31 days (and given his access to phones and computers, it probably did not) his wife could have started the Spouse Program application up until October 8, 2004. Instead, she merely chose an HMO for herself.
Petitioner explained that he missed the 2004 Open Enrollment Period because he had just returned from active duty. However, the evidence proves that as of October 15, 2004, Petitioner had actually returned to work; that he was provided the People First training CD on October 19, 2004; and that he watched the training CD on October 21, 2004. He was provided correct information concerning the Spouse Program in time to sign up during the 2004 Open Enrollment Period, but he did not do so on October 21-22, 2004.
Petitioner also failed to prove, by a preponderance of the evidence, his allegation that Ms. Floyd misinformed him in
December 2004. Ms. Floyd is more credible that this conversation, alleged in the Petition, if it took place at all, did not take place in December 2004. However, assuming arguendo, but not ruling, that Ms. Floyd told Petitioner on or about December 13, 2004, that he would have to wait for the next Open Enrollment period, that conversation could not have retroactively affected his missing the enrollment dates of his
31 days after his wife’s hiring (September 9, 2004), his wife’s
60 days after her hiring (October 8, 2004), or the 2004 Open Enrollment Period (September 15, through October 22, 2004). Moreover, the content of Ms. Floyd’s alleged December 2004 statement was not proven to be false information at that time, because there was no clearly proven related QSC.
Why Petitioner or his wife could not at least begin the process to enroll in the Spouse Program during the 2005 Open Enrollment Period for 2006, (understanding that they would have additional time to assemble the supporting documents) was never explained. Even by Petitioner’s unproven version of events, (Ms. Floyd’s alleged December 13, 2004, statement), Petitioner knew in December 2004, that he had to file an application for the Spouse Program during the 2005 Open Enrollment Period. Although Petitioner was on active duty during the whole of the 2005 Open Enrollment Period, he still had a computer and opportunity to sign up, and did not do so. Likewise, no
impediment to his wife’s beginning the Spouse Program application during the 2005 Open Enrollment Period was even offered.
Apparently, Petitioner's theory is that Ms. Floyd was personally responsible to “hand-feed" all information to him, rather than refer him to specialists at People First and at DOH's Personnel/Human Resources Office. This is not the reasonable theory of an ordinarily prudent person. It also is not the behavior of an ordinarily prudent person to expect someone to fetch him the application, fill it out, sign it for him and his wife, and submit it in a timely manner.
The applicable Florida Administrative Code Rules are, in pertinent part:
60P-1.003 Definitions. For the purpose of administering the State Group Insurance Program, the following words and terms shall have the meaning indicated:
(17) "Qualifying status change (QSC) event" or "QSC event" means the change in employment status, for subscriber or spouse, family status or significant change in health coverage of the employee or spouse attributable to the spouse's employment.
60P-2.003 Changes in Coverage
(1) An employee enrolled in the Health Program may apply for a change to family coverage or individual coverage within thirty-one (31) calendar days of a QSC event if the change is consistent with the event or during the open enrollment.
60P-2.0036: Spouse Program
Participation in the spouse program is voluntary and available to any married state employee whose spouse is also a state employee. Subject to the following conditions either employee may apply for the spouse program at any time by submitting an application in accordance with subsection 60P-2.002(2), F.A.C.:
If one (1) employee is insured as an eligible dependent under the other employee's family coverage; or
If either employee is applying for family coverage in accordance with Rule 60P- 2.002 or 60P-2.003, F.A.C.
60P-2.002: Enrollment
An employee or state officer may apply for enrollment in the Health Program through the employing agency personnel office:
During the first sixty (60) calendar days of state employment or a new term of office;
During open enrollment;
* * *
The employing agency shall request an effective date of coverage for enrollment in the Health Program in accordance with Rule. 60P-2.004, F.A.C., and indicate such date on the application . . .
At law, Petitioner is charged with knowledge of these rules. Town of Lauderdale-by-the-Sea v. Meretsky, 773 So. 2d 1245 (Fla. 4th DCA 2000), and the State may not be bound by misinterpretations of law by its lay administrative officers. Austin v. Austin, 350 So. 2d 102 (Fla. 1st DCA 1987); Infantino v. Department of Administration, DOAH Case No. 88-4905, (RO: 4/5/89; FO: 6/8/89). Petitioner also knew where to inquire if
he needed help. Ms. Floyd is credible that she frequently informed him of where help could be found. After Petitioner’s wife was hired on August 8, 2004, Petitioner had only until September 9, 2004, to act on his rights to elect the Spouse Program. Although he “shipped out” on August 11, 2004, his wife had until October 8, 2004, to elect the Spouse Program. She did not, and she chose an individual HMO, even though Petitioner had already insured the family through PPO. Petitioner’s wife also is charged with knowledge of the rules. She was informed of her rights upon her hiring by the State. She did not act on them.
Assuming arguendo that Petitioner actually believed that he could join the Spouse Program only during Open Enrollment, upon his return to the work site on October 15, 2004, Petitioner had knowledge of, or the means to know of, what was necessary to join the Spouse Program, and he had the opportunity to join the Spouse Program during two Open Enrollments, one of which ended October 22, 2004, and one of which occurred in the autumn of 2005.
Petitioner has failed to demonstrate that he received misinformation such that he did not, or received insufficient information so that he could not join the Spouse Program earlier than he actually did.
Petitioner has failed to establish an estoppel against the State. See Rayborn v. Dept. of Management Services, 801 So.
2d 1747 (Fla. 3rd DCA 2001); Dept. of Revenue v. Anderson, 503 So. 2d 397 (Fla. 1982). Ms. Floyd, the unit personnel liaison, did not make any statement of fact that reasonably would have misled Petitioner regarding his joining the Spouse Program. She told him whom to contact. She did not tell him the wrong thing to do. She did not suggest that he rely on her to do anything at all. Petitioner’s "reliance" amounted to simply doing nothing when he knew he must do something. His inaction does not amount to reasonable reliance. In 2004, correct information and specialized assistance was readily available to Petitioner, via DOH’s Personnel/Human Resources Office live or by phone and via People First on-line or by phone. The enrollment form that Petitioner signed in 2003, informed him what constituted QSCs and which administrative rules applied to participation in the State health insurance program. Petitioner had the means to enroll in the Spouse Program, yet he waited through two Open Enrollment Periods (2004 and 2005) without making any effort to enroll in the Spouse Program.
Petitioner has not raised any of the myriad statutory protections against their spouses, the State, private employers, licensing agencies, etc. afforded to military personnel on active duty. In an abundance of caution, the undersigned has researched same, and concludes that the thrust of all such statutory protections is to prevent the spouses, State,
employer, licensing agencies, etc. from depriving such military personnel of existing rights and benefits because, or while, they have served their country. None apply directly to the present circumstances in which the soldier failed to initiate a required procedure over several opportunities, and none affirmatively provide insurance to military personnel who have not made initial application therefor.
Petitioner is not entitled to the relief he seeks.
Due to the foregoing conclusions, it is not necessary to address Respondent's defense that this case is barred by the two-year statute of limitations contained in Section 110.123(4)(g), Florida Statutes.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED to deny the Petition and decline to alter the May 2006 date of Petitioner's and his wife's enrollment in the Spouse Program.
DONE AND ENTERED this 9th day of November, 2007, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 9th day of November, 2007.
ENDNOTES
1/ In making this Finding of Fact, the undersigned has relied on Exhibit R-4, Petitioner’s November 3, 2003, insurance application showing enrollment in the PPO Plan, and substantially modifies Stipulated Fact 4, which states that, “Beginning October 31, 2003, and presently the Petitioner participates in the HMO plan that is provided through the State Program.” Petitioner’s wife enrolled with an HMO in 2004. See Finding of Fact 24. It was not specified what type of insurance plan Petitioner enrolled in when he became employed by the Public Defender in 2006. See Stipulated Fact 7, Finding of Fact 46, and n. 2, below.
2/ This Finding of Fact constitutes a substantial modification of the parties’ Stipulated Fact 3, but embraces Stipulated Fact 4’s intent, so as to clarify the probable intent/meaning of both the stipulation and the evidence as presented. Stipulated Fact 3’s exact wording is confusing and/or incomplete. The stipulation reads, “In August 2004, Petitioner was a participant in the State of Florida self-insured PPO Plan. Group Health Insurance Plan Booklet and Benefit Document,’ effective January 2004, as modified effective January 1, 2005(‘Benefits
Document’), and administrative rule chapter 60P." See also Findings of Fact 13 and 16 and n. 1, above.
3/ In December 2004, Petitioner was outside any Open Enrollment Period and also was too far away from any qualifying event related in this record for Ms. Floyd’s alleged advice to make any difference. Without a specific date of birth for a new child, it cannot be determined when, or if, a QSC occurred so as to provide Petitioner and his wife a new 31-day window of opportunity during which they could make changes in their insurance between the 2004 and 2005 Open Enrollment Periods.
4/ For instance, the Petition alleges that Petitioner found out about the Spouse Program in December 2004; that he was away from DOH on a military tour “until October 24, 2005”; that he was re- activated for Hurricane Wilma on October 23, 2005, and that he returned to DOH in February 2006. During the course of preparing this Recommended Order, the undersigned has sua sponte taken official recognition that, although Hurricane Wilma made several landfalls, her “official dates” are October 15-25, 2005, which dates comport with part of Petitioner’s official leave records, as well as some testimony. (See Finding of Fact 43.)
COPIES FURNISHED:
Terry Rhines
849 Piney Village Loop Tallahassee, Florida 32399
Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260
Tallahassee, Florida 32399-0950
Sarabeth Snuggs, Director Division of Retirement
Department of Management Services Post Office Box 9000
Tallahassee, Florida 32315-9000
John Brenneis, General Counsel Department of Management Services 4050 Esplanade 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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 09, 2007 | Recommended Order | Petitioner was not inadequately informed or mis-informed by his personnel liason so as to be entitled to State health insurance premium, even though active military service was discussed as to circumstances. |
