STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A formal hearing was held in this case on November 21, 2008, by video teleconference between Lauderdale Lakes and Tallahassee, Florida, by Administrative Law Judge Eleanor M. Hunter of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bashere Bchara, pro se

10178 Southwest 53rd Court Cooper City, Florida 33328

For Respondent Sonja P. Matthews, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES

Whether the Petitioner was entitled to enrollment for his son in the State of Florida Group Health Self Insurance Plan for the January 1, 2008, to December 31, 2008, plan year and, if so,

whether he is entitled to reimbursement of $543 for student health insurance coverage that was added to his son's college tuition bill.

PRELIMINARY STATEMENT

In a letter dated June 18, 2008, Respondent rejected Petitioner's request for retroactive enrollment of his son in the state employees' group health insurance plan for the 2008 plan year. On August 14, 2008, the Petitioner filed a request for a formal hearing, that was forwarded to the Division of Administrative Hearings on September 24, 2008. As scheduled in the notice of hearing issued on September 30, 2008, the formal hearing was held on November 21, 2008. No transcript of the hearing was filed.

At the hearing, Petitioner represented himself and testified on his own behalf. Petitioner had earlier, on November 19, 2008, presented the testimony of Michael Smith by telephone. Petitioner's Exhibit 1, the Florida State University Tuition Detail Account Statement for Dani Bchara for Fall 2008, was received into evidence. Respondent presented the testimony of Sandi Wade, James West, and Scott Thompson. Respondent's Exhibits 17, 18, 22, 24, 27-33, and 34-38 were received into evidence. Respondent's request for official recognition of documents numbered 1 through 7 was granted.

Respondent filed a Proposed Recommended Order on December 16, 2008. Petitioner did not file a proposed recommended order. Based upon all of the evidence or the stipulation of the parties, the following Findings of Fact and Conclusions of Law

are determined.

FINDINGS OF FACT

1. Petitioner, Bashere Bchara, has been employed by the Florida Department of Transportation for the past 9 years including the period October 2007 through December 2008. He is and was, on all relevant dates, entitled to state employees’ benefits, including participation for himself, his spouse, and eligible dependents in the State Group Health Insurance Program.

2. On October 16, 2007, during the open enrollment period, the Petitioner accessed his state employee benefits from his computer to change his dental coverage, as he was required to do because of a change in State providers.

3. Mr. Bchara believes that an error in the People First computer program, that is used to manage state human resources data, caused his son, Dani Bchara, to be removed from health insurance coverage as his dependent. He also said it was his first time using the computerized People First program to elect or change benefits. There is no dispute that Dani Bchara, who had been covered during the previous plan year, continued to be an eligible dependent.

4. Mr. Bchara's witness, Michael Smith, testified that he too had problems trying to use People First to change dental plans. He found the People First computer screens confusing and disorganized.

5. Dani Bchara was, at the time, a 22-year-old college student. As a part of his tuition and fees, Florida State University charged his account $543 for health insurance.

6. In May 2008, after a claim for reimbursement for health expenses for Dani Bchara was rejected, Mr. Bchara, contacted plan insurer, Blue Cross Blue Shield; plan contract administrator, People First; and then Respondent, the Department of Management Services, Division of State Group Insurance (Respondent or DSGI). DSGI has the responsibility for administering the insurance program. See § 110.123, Fla. Stat. (2008).

7. After reviewing his complaint, Sandi Wade, a benefits administrator for DSGI, notified Mr. Bchara that his son was not covered by the state health plan. She also determined that he could not add his son, at that time, due to the absence any qualifying status change, as required by federal and state law. There is no allegation nor evidence of a qualifying status change that would allow the addition of Mr. Bchara's son to his coverage.

8. Ms. Wade was not aware of any other reports of possible computer glitches of the type Mr. Bchara believes he experienced during the open enrollment period in October 2007.

9. James West, a manager for People First testified that, during the enrollment period in October 2007, computer screens for health insurance and dental insurance were entirely different. Each was displayed only after the appropriate tab was chosen. In addition, Mr. West noted that a "summary last step" had to be chosen and the final summary screen allowed employees to view changes from all prior screens before selecting the option to "complete enrollment."

10. Mr. West examined logs of computer transactions on October 16, 2007. The logs showed that Mr. Bchara, using his People First identification number changed his health insurance by deleting coverage for his son.

11. Mr. West reviewed correspondence logs that indicated that Mr. Bchara was sent a notice dated October 27, 2007, confirming the changes he had made to his benefits. The notice was sent from the Jacksonville service center of Convergys, the contract operator of the People First system, to an address that Mr. Bchara confirmed was correct. Mr. Bchara testified that he did not receive the letter. Mr. West testified that the letter was not returned, as confirmed by an electronic tracking system for mail.

12. Scott Thompson, Director of Application Development for Convergys, testified that his records also show every time Mr. Bchara logged into the People First system using his identification number and password. The logs also show that his health plan was changed when he accessed the system on

    October 16, 2007.

    
    

13. Based on the evidence in the computer records and logs that Mr. Bchara, albeit unintentionally, deleted coverage for his son in the group health insurance program, there is insufficient evidence of computer or human error attributable to Respondent.

14. In the absence of sufficient evidence of any errors by DSIG or its agents, or any evidence of a qualifying status change in Mr. Bchara's employment or his family, DSIG correctly rejected the request for retroactive enrollment of his son in the state group health insurance.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Section 120.569 and Subsections 120.57(1), Florida Statutes (2008).

16. Petitioner, as a state employee, and his eligible dependents were at all relevant times eligible to participate in

    the state group insurance plan, as provided by Florida Administrative Code, Chapter 60P.

17. Respondent, as the administrator of the pre-tax program, is required by Section 125 of Internal Revenue Code to enroll new members only during the open enrollment period preceding each plan year and only in the event of a qualifying status change during the plan year. §§ 110.123 and 110.161, Fla. Stat. (2008).

18. In this case, Petitioner asserts the affirmative and, therefore, has the burden of proving by a preponderance, or the greater weight, of the evidence that his son should be retroactively enrolled in the state group health insurance program. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

19. The evidence that he did not intend to delete coverage for his son and that another person may have experienced difficulty using the People First computer system is insufficient to establish by a preponderance of evidence that state agents or computers erred, or that his son should receive retroactive coverage.

20. Based on the conclusions regarding the sufficiency of the evidence, the question of jurisdiction to order a refund of fees charged by his son's college is not addressed.

RECOMMENDATION

Based on the foregoing, it is recommended that the Respondent enter a final order denying Petitioner, Bashere Bchara, retroactive health insurance coverage for an additional dependent under the state plan for the 2008 plan year.

DONE AND ENTERED this 16th day of January, 2009, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2009.

COPIES FURNISHED:

Sonja P. Matthews, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Bashere Bchara

10178 Southwest 53rd Court Cooper City, Florida 33328

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.

Docket for Case No: 08-004770

Orders for Case No: 08-004770