Pursuant to notice, the final hearing in this case was heard before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on June 18, 2010, by video teleconference, with sites in Tampa, Florida, and Tallahassee, Florida.
For Respondent: Sonja P. Mathews, Esquire
Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260
Whether Petitioner was initially enrolled in her current dental plan as a result of an error and, therefore, should be
allowed to cancel the current enrollment and retroactively enroll in the desired plan.
On October 8, 2009, Respondent issued a letter, denying Petitioner’s Level II appeal. Petitioner timely requested a hearing, and this matter was referred to Gerard T. York, Presiding Officer, for an informal hearing. At the hearing, it was determined that certain disputed material facts exist, necessitating the assignment of an Administrative Law Judge to resolve the issues. This matter was referred to the Division of Administrative Hearings on December 21, 2009.
This matter was set for hearing and then continued at the request of Petitioner. Petitioner made a second request for a continuance, which was made less than five days before the start of the scheduled hearing. Since no emergency was shown, it was denied. Fla. Admin. Code R. 28-106.210.
After waiting 30 minutes, Petitioner failed to appear; however, Respondent chose to put on its case-in-chief.
Respondent called four witnesses: Saudie Wade, benefits coordinator for Respondent; James West, operations benefits manager for Northgate Arinso; Janelle Vazquez, case team advisor for Northgate Arinso; and Marie Abramo, supplemental insurance product manager for Respondent. Respondent’s pre-marked Exhibits 9 through 15 and 18 were admitted in evidence.
The hearing was recorded, but not transcribed. Petitioner has not submitted a basis for her absence nor did she provide proposals as of the date of this Recommended Order. Respondent timely submitted its proposals on June 28, 2010.
As defined in Subsection 110.123(2), Florida Statutes (2009),1 the “state group insurance program” or “programs” offer a variety of insurance plans to state officers, employees, retirees, and dependents. The programs include regular benefits that are offered to employees as part of the regular benefits package and supplemental insurance benefits that are made available to all employees. Unless participants opt-out, all insurance premiums are paid through the state-sponsored pre-tax programs. Under federal law, taxable income is reduced by the insurance premiums paid through pre-tax programs.
At all times relevant to this proceeding, Petitioner has been an active state employee, participating in the programs.
Section 110.161, Florida Statutes, directs the Department of Management Services to establish and maintain pre- tax programs as authorized by the Internal Revenue Code (IRC) of 1986. These programs allow employers (including public employers) to establish plans whereby employees’ taxable income
is reduced by the premium payments deducted from employees’ wages.
The pre-tax programs are known as “Section 125 Plans” and “Cafeteria Plans” and are governed by 26 United States Code Section 125.
Subsection 110.161(6)(a), Florida Statutes, states that Respondent shall allow employees’ contributions to premiums for the State Group Insurance Program administered under Section 110.123, Florida Statutes, to be paid on a pre-tax basis, unless an employee elects not to participate.
Employers participating in the Section 125 pre-tax program must implement a written plan (Cafeteria Plan) and take deductions from an employee’s earned income for the purpose of paying medical and dependent care expenses and, as in this case, insurance premiums.
To maintain the pre-tax benefit, the employer is required to administer the program in compliance with IRC Section 125; the applicable federal laws, rules, and regulations; and the employer’s written plan.
Florida Administrative Code Chapter 60P is part of the State of Florida’s Cafeteria Plan.
Supplemental insurance is governed by Florida Administrative Code Chapter 60P-10. Dental insurance is a supplemental insurance, which means it is not included in
regular employee benefits, but is optional coverage provided through the pre-tax programs.
Under Florida Administrative Code Rule 60P-10.005, for employees on payroll, premiums shall be payroll deducted, and enrollment in the pre-tax programs is automatic, unless declined by participants.
Florida Administrative Code Rule 60P-10.003(1) provides that an employee may elect to change or cancel coverage upon the occurrence of a qualifying status change event or during open enrollment period.
Through a contract with the State of Florida, NorthGate Arinzo (formerly Convergys, Inc.) provides personnel administrative services, including management of benefits.
The processing of benefits is performed through an online system known as People First.
Petitioner was hired on June 26, 2009. On July 2, 2009, Petitioner enrolled in the program as a new hire.
Prior to July 2, 2009, Petitioner had been assigned a People First identification number and was, therefore, able to access the People First system.
On July 2, 2009, Petitioner called People First to select benefits. Her call was routed to Customer Service Representative Janelle Vazquez at 11:00 a.m. on that date.
The People First system includes notations that are manually input by the representative that is assisting the employee. This is known as the “e-case system.” The e-case system also notes written correspondence that is received from or provided to employees.
When an employee calls into People First to enroll in benefits, the representative accesses the enrollment screen. Once the employee informs the representative that he or she wants to enroll in dental insurance, the representative accesses the dental tab. A screen comes up that identifies the insurer (e.g., CompBenefits) and plan code (e.g., 4004, 4054). The representative does not type in either the name of the insurer, nor the plan code, but makes the selections from the menu that is presented.
The menu shows plan names and plan codes. No plan description of benefits are provided on the enrollment screen. The representative does not advise the employee based upon type of benefits. It is the responsibility of the employee to identify the type of plan desired and to provide the representative the plan code of the plan name.
Once the representative has been directed to enter the plan name and plan code, the representative reads the selections to the employee and then pushes the “complete transaction” button. After the enrollment, the transaction is noted in the
e-case notes system. The notation is made by copying the enrollment information as it appeared on the enrollment screen and pasting it into the e-case notes.
On July 2, 2009, at 11:00 a.m., as instructed by Petitioner, Vazquez enrolled Petitioner in insurance benefits, including “CompBenefits Network Plus #4004 Employee Only.”
The People First system also maintains a screen that shows when contacts are made with an employee and any related transaction. The “Logged Changes” shows that on July 2, 2009, at 10:58 a.m., Vazquez made changes to Petitioner’s account.
After the enrollment, a computer confirmation notice was mailed on July 3, 2009, by first class mail to Petitioner. The confirmation notice was mailed to Petitioner’s address of record: 1311 Trail View, Tarpon Springs, Florida 34688.
Had the confirmation notice been returned to People First, it would have been noted in the e-case notes. There is not a notation in Petitioner’s e-case notes that the confirmation notice was returned.
The confirmation notice advises new enrollees of the coverage selected. As to dental, it identifies the plan by name of the provider and plan code, coverage level, and the monthly premium.
The confirmation notice advises enrollees that, if the statement does not accurately reflect changes to coverage, the
enrollee must contact the People First Service Center within
days of the date of the notice to make any corrections. A toll-free telephone number is provided.
Prior to July 2, 2009, Petitioner had access to the People First website, including the booklets that identified the providers, which described the various benefits, the levels of coverage available, and the plan codes. The booklets describing the benefits are available on the website or the employee can request copies to be sent by mail.
Regarding the CompBenefits dental coverage, the booklet points out that there is a “Network Plus Prepaid” plan (code 4004) and a “Preferred Plus DPPO” plan (code 4054). The booklet provides a full description of the benefits available under each and the differences between the two plans. The CompBenefits booklet also provides an explanation of the payment of benefits and co-pays.
On and prior to July 2, 2009, a publication identified as the “Benefits Guide for State of Florida Employees,” effective January 1, 2009, was available on the website of Respondent. The benefits guide provided a full description of the dental benefits available and also contained an explanation of the difference between the “Dental Prepaid Plans” and the “Dental Preferred Provider Organization” (DPPO) offered by CompBenefits.
The benefits guide also offered a comparison of the premium payments and benefits offered under each of the plans. On page 10 of the benefits guide is an advertisement that compares the Network Plus Prepaid plan (includes code 4004) and Preferred Plus DPPO plan (includes code 4054).
In each of the documents described in paragraphs 29 and 30, the information included the plan codes: “4004” for the Network Plus Prepaid plan and “4054” for the Preferred Plus DPPO plan.
On July 2, 2009, available to Petitioner were the benefits guide included on the website of Respondent and the People First website that contained the booklets that outline the various dental plans available to state employees.
On July 2, 2009, Petitioner directed the People First service representative to enroll Petitioner in the CompBenefits 4004 plan.
Although it was unlikely that Ms. Vasquez entered the incorrect plan number, Petitioner failed to review the confirmation notice within the time allotted and, therefore, cannot make correction at this time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this
proceeding in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes.
Respondent is an executive agency within the Department of Management Services that is responsible for the administration of the State Group Insurance Program.
§ 110.123(1) and (3), Fla. Stat.
The State Group Insurance Program is administered pursuant to Section 110.123, Florida Statutes, and the administrative rules contained in Florida Administrative Code Chapter 60P.
At all times relevant to this proceeding, Petitioner has been an active state employee, participating in the programs.
By the promulgation of Florida Administrative Code Chapter 60P, the State of Florida has identified the terms and conditions of participation in the State of Florida’s pre-tax insurance programs. Florida Administrative Code Chapter 60P-10 contains specific rules regulating participation in the supplemental insurance plans. A participant in any pre-tax program can make changes only as outlined in the employer’s plan and rules. Once an employee has enrolled, the rule allows changes during the plan year upon the occurrence of a qualifying status change event and during open enrollment. Fla. Admin. Code R. 60P-10.003.
It is a well established principle of administrative law that, if an agency’s interpretation of the statute it is charged with enforcing is within the range of possible and reasonable interpretation, and it is not clearly erroneous, it should be affirmed. Creative Choice XXV, Ltd. v. Florida Housing Finance Corp., 991 So. 2d 899, 901 (Fla. 1st DCA 2008); but see Collier County Bd. of County Com’rs v. Fish and Wildlife Conservation Com’n, 993 So. 2d 69, 75 (Fla. 2d DCA 2008). The rules of statutory construction also apply to the interpretation of rules. McCoy v. Hollywood Quarries, Inc., 544 So. 2d 274,
277 (Fla. 4th DCA 1989).
Florida Administrative Code Rule 60P-10.002 reads as
follows:
60P-10.002 Enrollment.
An employee may apply for enrollment in a supplemental insurance plan through his or her personnel office during:
During the first sixty (60) calendar days of state employment or a new term of office;
During open enrollment;
Within thirty-one (31) days of a QSC of losing group health coverage;
Within thirty-one (31) days of a QSC of an increase in the number of work hours for an employee.
The employing agency shall request an effective date of coverage for enrollment in
supplemental insurance plan in accordance with Rule 60P-10.004, F.A.C., and indicate such date on an application along with other required employee and agency information.
This information shall include:
Employee’s and eligible dependent’s name, social security number, birth date, sex, employee’s home mailing address, employment date, SAMAS organizational code, company, product, coverage code, option codes, and action to be taken;
Contains the signature and date of the employee and authorized signature and date of the employing agency certifying eligibility of the employee.
The employee acknowledges that eligibility and enrollment are governed by the provisions of Chapter 60P-1, F.A.C.; authorizes the State to reduce salary as often and in amount necessary to continue coverage; acknowledges premiums may change from time to time; agrees to notify the Department at the time any dependent becomes ineligible for coverage; and agrees that all statements made on application are complete and true.
The completed application shall be forwarded to the Department by the employing agency prior to the requested effective date.
Attach the original company application, completed and signed by the employee and certified by the employing agency.
An employee enrolled in a supplemental insurance plan shall automatically be enrolled in the pretax premium plan pursuant to Chapter 60P-6, F.A.C.
Florida Administrative Code Rule 60P-10.003, Change in Coverage, reads as follows:
An employee may elect, change, or cancel coverage within thirty-one (31) days of a Qualified Status Change (QSC) event if the change is consistent with the event pursuant to subsection 60P-2.003(7), F.A.C., or during the open enrollment period.
The employing agency shall request an effective date for a change in coverage in accordance with Rule 60P-10.004, F.A.C.
The Department shall approve a coverage change if the completed application is submitted within thirty-one (31) calendar days of the QSC event and the proper documentation is provided.
If an employee wants to decline coverage after reviewing any underwritten policy by any company, such employee must complete and sign the required application terminating the election prior to the end of the month in which coverage would take effect.
The general definitions applicable to Florida Administrative Code Chapter 60P-1, include the following:
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.
According to Florida Administrative Code
Rule 60P-10.003, the insurance selections made during initial enrollment will continue during the plan year unless the participant makes changes in coverage during open enrollment or upon a qualifying status change event.
After her enrollment in the CompBenefits 4004 plan, during Plan Year 2009, Petitioner did not report a qualifying status change event that would allow her to make a change. The rules do not allow for any exceptions.
The confirmation notice mailed to Petitioner’s address of record provided adequate and reasonable notice to Petitioner.
The evidence presented is sufficient to raise the presumption that on July 3, 2009, Respondent, through its contractor People First, mailed the confirmation notice to the address of record. Regarding mailing by business entities, under Florida law, once the business presents evidence of its routine, a presumption arises that the routine was followed in the case in question.
Section 90.406, Florida Statutes (the Evidence Code), states:
Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
Petitioner seeks to have her enrollment in a dental plan retroactively changed based upon an alleged mistake made during her initial enrollment on July 2, 2009.
On July 2, 2009, Petitioner called into People First and was enrolled in the dental insurance in question by a representative of People First.
Petitioner alleges that the representative made a mistake in enrolling her in a plan with code “4004,” as opposed to code “4054.” However, the evidence shows that the representative that enrolled Petitioner used the plan code provided by Petitioner. According to the representative, at their work stations, the representatives do not have plan descriptions, and the only information that is available is the name of the insurer, level of coverage (individual or family), and the plan code.
Further, according to the testimony of the representative, she is not familiar with the description of the benefits provided under the various plans. Therefore, the representative could not have advised Petitioner which was an HMO-type of insurance and which was a PPO-type of insurance.
On the day that Petitioner called in to select her insurance coverage, she had access to the People First website and to Respondent’s website. Both contained information describing all benefits. In as much as supplemental insurance
is part of the pre-tax programs, Respondent is statutorily mandated (§ 110.161, Fla. Stat.) to administer the pre-tax programs in a manner that assures its compliance with the federal requirements. One federal requirement is that the plan complies with the plan’s own terms and conditions. In this case, that means making changes during open enrollment or upon the occurrence of qualifying status change event. The People First representative followed the instructions of Respondent.
In absence of a qualifying status change event, Petitioner cannot change her enrollment choices during the plan year.
Additionally, by a preponderance of evidence, Petitioner was notified by the confirmation notice and did not report the mistake within the time allotted.
Based upon the forgoing Findings of fact and Conclusion of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order, dismissing the claim of Petitioner.
DONE AND ENTERED this 13th day of August, 2010, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2010.
1/ All references to Florida Statutes are to Florida Statutes (2009), unless otherwise indicated.
Camille V. Cato 1311 Trail View
Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260
John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way
