STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS EDWARD LEE SMITH, Petitioner, v. DOAH CASE NO.: 11-3158 DMA CASE NO.: — 11-22088 DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE i - 11-0119 GROUP INSURANCE, Final Order No. DMS Respondent. / FINAL ORDER THIS MATTER has come before the undersigned for the purpose of issuing a Final Order, in accordance with section 120.569 (1), Florida Statutes. On July 14, 2011, Administrative Law Judge E. Gary Early, issued a Recommended Order of Dismissal recommending that the Department enter a final order dismissing the Petitioner’s request for a formal hearing because it was filed with the Respondent more than 21 days after Petitioner received the letter denying his Level II appeal. Neither party has filed exceptions to the Recommended Order FINDINGS OF FACT The Department of Management Services hereby adopts the Findings of Fact contained in the Recommended Order of Dismissal as its findings in this Final Order. CONCLUSIONS OF LAW. The Department of Management Services hereby adopts the Conclusions of Law contained in the Recommended Order as its conclusions in this Final Order. Filed December 9, 2011 1:06 PM Division of Administrative Hearings IT IS HEREBY ORDERED AND ADJUDGED: 1. That the Recommended Order of Dismissal issued in this case is adopted in its entirety and is incorporated herein by reference. 2. That based on the Findings of Fact and Conclusions of Law contained in the Recommended Order of Dismissal and adopted by the Department of Management Services in this Final Order, the Petitioner's request for a Formal Hearing is hereby DENIED. 3. This Final Order shall become effective on the date of filing with the Agency Clerk of the Department of Management Services. 406 £6 Peplensie Way, Tallahassee, Florida 32399-0950 Copies furnished to: Edward L. Smith 62 Farm Boy Road Lamont, FL 32336 Sonja P. Mathews Assistant General Counsel Office of the General Counsel NOTICE OF RIGHT TO APPEAL Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: Filed in the affice of the Clerk of the the Dep: ent of Management Services on this day of yet, 2011. Agéncy Clerk DIVISION OF ADMINISTRATIVE HEARINGS EDWARD LEE SMITH, Petitioner, DEPARTMENT OF MANAGEMENT SERVICES, Respondent. STATE OF FLORIDA Case No. 11-3158 RECOMMENDED ORDER OF DISMISSAL This cause has come before the undersigned on a Motion to Dismiss filed by Respondent on June 23, 2011, and Petitioner’s responses to the Motion. For Petitioner: For Respondent: APPEARANCES Edward L. Smith, pro se 62 Farm Boy Road Lamont, Florida 32336 Sonja P. Mathews, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE Whether the Petitioner’s late-filed request for hearing should nonetheless be accepted by the Department of Management Services (DMS) and the Division of Administrative Hearings based upon the application of the doctrine of equitable tolling. PRELIMINARY STATEMENT This case was initiated through the issuance of a notice denying Petitioner’s Level II Appeal regarding Petitioner’s request to opt out of the State Employees’ PPO Plan mail order program for prescriptions. Petitioner filed a request for a formal hearing, which was referred to the Division for disposition, and assigned to the undersigned. On July 23, 2011, Respondent filed a Motion to Dismiss on the ground that the request for hearing was untimely filed. Attached to the Motion were the notice of proposed agency action, the certified mail receipt, and the date-stamped request for formal hearing. On June 27, 2011, Respondent filed a Supplement to Respondent’ s Motion to Dismiss, which included the envelope in which the request for formal hearing was received by Respondent. The exhibits are sufficient to facially establish that Petitioner’s request for hearing was filed with the agency beyond the 21-day period required by the notice and Florida Administrative Code Rule 60P-1.004. Petitioner filed a Request to Deny Motion to Dismiss on July 1, 2011. Petitioner did not deny that his request for formal hearing was not timely filed, but set forth his reasons for the late-filed request for hearing. An Order to Show Cause was entered by the undersigned on July 5, 2011, requesting that Petitioner address the issue of equitable tolling and its applicability to the facts of this case. On July 7, 2011, Respondent filed a Response to Request to Deny Motion to Dismiss, which included an extensive discussion of the doctrine of equitable tolling and its applicability to this case. Finally, on July 11, 2011, Petitioner filed a Response to Order to Show Cause restating the reasons for the late filing set forth in his July 1, 2011 pleading. Having reviewed the matter fully, accepting all of Petitioner’s allegations as true, and having considered the allegations in the manner most favorable to the Petitioner, for the reasons set forth below it is concluded that, as a matter of law, the request for formal hearing should be dismissed as untimely, and the Department of Management Services should enter a final order consistent with its notice of proposed agency action. FINDINGS OF FACT 1. On May 13, 2011, Petitioner received the notice of proposed agency action, consisting of a letter denying Petitioner’s Level-II Appeal, which requested that Petitioner be allowed to opt out of the mandatory mail order of prescriptions under the State Employees PPO Plan. 2. The May 13, 2011 Notice included a notice of rights advising Petitioner that further appeals could be available by filing a request for hearing within 21-calendar days of receipt of the notice, 3 Not counting the May 13, 2011 date of receipt of the notice, the 21st day for filing a request for hearing fell on Friday, June 3, 2011. 4. Petitioner mailed his request for hearing on June 6, 2011, which request was received by the Respondent on June 13, 2011. 5. On May 11, 2011, Petitioner’s spouse underwent arthroscopic surgery to repair tears in the meniscus of her right knee. Petitioner provided caregiver service, including transportation to follow-up appointments during her period of convalescence. Petitioner’s duties during that period included an unscheduled June 1, 2011 visit to the surgeon for the aspiration of fluid from his spouse’s knee. 6. On May 18, 2011, Petitioner experienced a “Catastrophic Disk Failure” of his personal computer. The data lost, at least temporarily, included researched material, lists of prescriptions, and their dates of initial and subsequent refills, and timesheets from the People First website. Recovery of data from the backup hard drive required the expenditure of more than 18 hours to complete. Some data had to be reacquired from the source. “ 7. The fact that the recovery of the data was performed “on my own time, after work,” (see Request to Deny Respondent’s Motion to Dismiss, 973) indicates that Petitioner was performing normal employment duties during the relevant period of time, CONCLUSIONS OF LAW 8. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Fla. Stat. (2010). 9. Respondent cites to Florida Administrative Code Rule 60OP- 1.004 as support for the dismissal of the request for hearing. That rule provides that: Any party whose substantial interests have been or will be determined by a decision or intended decision of the Division of State Group Insurance and who desires to contest the agency’s decision or intended decision shall submit a petition for an administrative hearing that complies with Rule 28-106.201, F.A.C., if there isa dispute of material fact, or Rule 28-106.301, F.A.C., if there is no dispute of material fact. The petition must be received by the agency clerk of the Department within twenty-one (21) calendar days after notice of the decision or intended decision is received by the party. The clerk's address is Office of General Counsel, Department of Management Services, 4050 Esplanade Way, Tallahassee, FL 32399-0949, Proceedings shall be conducted pursuant to Chapter 120, Florida Statutes, and Rule Cnapter 28~106. (Emphasis supplied). 10. Florida Administrative Code Rules 28-106.111(2)-(4} provide: (2) Unless otherwise provided by law, persons seeking a hearing on an agency Gecision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision. (3) An agency may, for good cause shown, grant a request for an extension of time for filing an initial pleading. Requests for extension of time must be filed with the agency prior to the applicable deadline. Such requests for extensions of time shall contain a certificate that the moving party has consulted with all other parties, if any, concerning the extension and. that the agency and any other parties agree to or oppose the extension. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon. (4) . Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. This provision does not eliminate the availability of equitable tolling as a defense. 11. Florida Administrative Code Rule 28-106.104(1) provides: In construing these rules or any order of a presiding officer, filing shall mean received by the office of the agency clerk during normal business hours or by the presiding officer during the course of a hearing. 12. Section 120.569(2)}(c), Florida Statutes, provides, in pertinent part, that “{a] petition shall be dismissed if it . has been untimely filed.” 13. Petitioner does not dispute that his request for hearing was untimely filed. In that regard, in his Request to Deny Respondent’s Motion to Dismiss, he stated that “. . . Petitioner did not submit a Request for Formal Hearing within the time required per Florida Administrative Code Rule 28, a fact that is not denied, but is requesting consideration given the occurrences previously related.” 14. Dismissal of an untimely request for hearing is mandatory unless facts exist to support the application of the doctrine of equitable tolling. Section 120.569(2)(c), Fla. Stat.; Fla. Admin. Code R. 28-106.111(4); Machules v. Dep’t of Admin., 523 So. 2d 1132 (Fla. 1988); Riverwood Nursing Ctr., LLC v. Ag. for Health Care Admin., 58 So. 3d 907 (Fla. ist DCA 2011); Cann v. Dep't. of Child. & Fam. Servs., 813 So. 2d 237 (Fla. 2d DCA 2000). Equitable tolling may be applicable “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.” Machules at 1134, 15. There has been no suggestion that Petitioner was misled or lulled into inaction as a result of any act or omission of the DMS or any other person. To the contrary, the documents filed in this proceeding reflect that the DMS clearly advised Petitioner of the timeframe and procedure for requesting a hearing as well as the consequences for failure to timely request a hearing. Likewise, Petitioner has not asserted that he timely asserted his rights in the wrong forum. Thus, the sole issue for consideration is whether Petitioner was, in some extraordinary way, prevented from timely asserting his rights. 16. The facts alleged by Petitioner are not so extraordinary as to have prevented Petitioner from asserting his rights. The care for a person who has undergone arthroscopic knee surgery is not so involved as to completely subsume the normal and necessary activities of daily life. That is particularly so where, as here, Petitioner continued to work during his spouse’s convalescence. 17. The fact that Petitioner experienced computer problems is also not such an extraordinary occurrence as to require the application of equitable tolling to excuse the late filing of his request for hearing. The disk failure occurred 16 days before the filing deadline. Petitioner had ample opportunity to either recover the data from the backup hard drive, or to obtain the information from People First or his pharmacy. The research data and specific prescription information was not necessary for Petitioner to be able to identify disputes with DMS’s notice of proposed agency action. Even if there was some item of information contained on the hard drive that was vital for the preparation of a request for hearing, Petitioner could have requested additional time to file which would have, without more, tolled the time for filing. Fla. Admin. Code R. 28-106.111(3). 18. The facts set forth by Petitioner are not sufficient basis to apply the doctrine of equitable tolling. Medical and workload issues have been found insufficient to trigger equitable tolling, and in analyzing the effect of such allegations, the Third DCA has held: [Petitioner] has not demonstrated that he was in any way prevented from timely requesting a hearing within the twenty-one-day period. He has merely alleged that he mistakenly failed to do so. Such a mistake, even if it rises to the level of excusable neglect, does not provide [Petitioner] with an escape from the consequences of his late-filed petition. Aleong v. State, Dep't of Bus. & Prof'l Regulation, 963 So. 2d 799, 801 (Fla. 4th DCA 2007). In closing, we quote the following language from this Court: We, like the Second District before us, recognize that denying a late request for an administrative hearing could be, and perhaps should be, compared to entry of a default in a judicial proceeding, and that the administrative rules should encourage the setting aside of defaults to permit claims to be heard on their merits rather than decided on procedural technicalities. Cann v. Dep't of Children & Family Servs., 813 So. 2d 237, 239 (Fla. 2d DCA 2002).. However "the legislature or the relevant agencies are the decision-makers to which these policy arguments must be directed. In the context of administrative law, the courts cannot override a filing rule that does not violate due process." [Id.}] at 240. The final order is, therefore, affirmed. (Emphasis in original) Gonzalez v. Fla. Dep't of Fin. Servs., 60 So. 3d 469 (Fla. 3d DCA 2011), citing Patz v. Dep't of Health, 864 So. 2d 79, 82 (Fla. 3d DCA 2003). 19. In sum, Petitioner’s request for hearing must be dismissed because it was filed with the Department more than 21 days after Petitioner received the letter denying his Level IT appeal. 20. The untimeliness of Petitioner’s request for hearing cannot be cured and, therefore, the opportunity to amend the request for hearing is neither necessary nor appropriate. See, S$ 120.569(2)(c), Fla. Stat. (“Dismissal of a petition shall, at least once, be without prejudice to petitioner's filing a timely amended petition curing the defect, unless it. conclusively appears from the face of the petition that the defect cannot be cured.”). RECOMMENDATION Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, issue a final order dismissing Petitioner’s request for hearing. DONE AND ENTERED this 14th day of July, 2011, in Tallahassee, Leon County, Florida. — E. GARY EARLY 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 14° day of July, 2011. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Edward L. Smith 62 Farm Boy Road Lamont, Florida 32336-7204 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 of Dismissal. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 11-003158