The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed with the Division of Administrative Hearings on September 15, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Insurance is the state agency responsible for licensing insurance agents in Florida and with regulating their conduct. Section 624.307 and Chapter 626, Part I, Florida Statutes (1999). At the times material to this proceeding, Ingrid Machado was Florida-licensed insurance agent. In March 1999, Teresita Baldor was interested in purchasing health insurance. Ms. Baldor had previously owned a private school and had been insured through the school's group health insurance policy. After she sold the school and began teaching mathematics at Miami-Dade Community College and Saint Thomas University, she no longer had health insurance coverage. On or about March 10, 1999, Ms. Machado met with Ms. Baldor at Ms. Baldor's home. Ms. Baldor knew Ms. Machado only as an insurance agent and did not know whether Ms. Machado was affiliated with an insurance agency. Ms. Machado told Ms. Baldor during the March 10, 1999, visit that she would try to place Ms. Baldor in a group for health insurance purposes but that she did not know at that time the group Ms. Baldor would be placed in or the name of the insurance company that would provide the health insurance coverage. Ms. Machado told Ms. Baldor during the visit that she would let Ms. Baldor know the name of the company providing her coverage and that she would send Ms. Baldor the coverage information. During her March 10, 1999, visit to Ms. Baldor's home, Ms. Machado asked Ms. Baldor for general identification information, such as her name and social security number, and for other information, such as her weight. Ms. Baldor did not sign any document during this visit and cannot recall if Ms. Machado completed any form during their conversation. Ms. Machado asked Ms. Baldor to make out two checks, one in the amount of $175.00 and one in the amount of $100.00, but Ms. Baldor does not remember Ms. Machado's telling her the reason she needed two separate checks. Ms. Machado asked Ms. Baldor to leave the line for the name of the payee blank, again telling Ms. Baldor that she did not yet know which insurance company would ultimately provide health insurance coverage to Ms. Baldor. Ms. Machado told Ms. Baldor that the name of the company would be filled in on the checks at a later time. Ms. Machado told Ms. Baldor that she would have health insurance coverage effective March 15, 1999. On or about March 20, 1999, Ms. Baldor telephoned Ms. Machado because Ms. Baldor had not received any information regarding health insurance coverage. Ms. Machado told Ms. Baldor that she was having complications with her pregnancy and could no longer handle Ms. Baldor's insurance matters. Ms. Machado gave Ms. Baldor the telephone number of the "Durey Agency," told her that this agency would work with her to obtain health insurance coverage, and gave her Ray Gonzalez's name. Ms. Machado had no further contact with Ms. Baldor after the telephone conversation on or about March 20, 1999, during the times material to this proceeding. At some point, Ms. Baldor called the telephone number Ms. Machado had given her to find out why she had not received any information regarding her health insurance coverage. Ms. Baldor told the person who answered the phone, a woman named Maria, that she wanted her checks back if she could not give her any information "right then." Later the same day, Maria called Ms. Baldor and told her that she had been placed in a group for health insurance purposes. A Neighborhood Health Partnership Enrollment Form was submitted to the Neighborhood Health Partnership on behalf of Ms. Baldor. On the form, Ms. Baldor was identified as an employee of "International Marketing." A signature appeared on the bottom of the form purporting to be that of Ms. Baldor, and the date next to the signature was "5/10/99." Ms. Baldor never saw the Neighborhood Health Partnership Enrollment Form. A few weeks after Maria told Ms. Baldor that she had been placed in a group for health insurance purposes, Ms. Baldor received a package from the Neighborhood Health Partnership that contained an identification card indicating that she was enrolled in the "International Marketing Group" and indicating that her insurance coverage with the Neighborhood Health Partnership was effective as of June 15, 1999. During Ms. Baldor's conversations with Ms. Machado, Ms. Machado never mentioned the Neighborhood Health Partnership or International Marketing Group. The checks Ms. Baldor provided to Ms. Machado were made payable to the Durey Insurance Group and were processed by the bank on or about May 17, 1999. In addition, Ms. Baldor wrote checks to the Durey Insurance Group dated July 10, 1999, and August 9, 1999, as payment for her health insurance premiums. Ms. Baldor's insurance coverage with the Neighborhood Health Partnership was eventually cancelled. It was Ms. Baldor's understanding that it was cancelled because the Durey Insurance Group did not remit her premium to the Neighborhood Health Partnership and because the "International Marketing Group" in which she was placed by the Durey Insurance Group did not exist. Summary The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado's actions with respect to her dealings with Ms. Baldor demonstrated a lack of fitness or trustworthiness or demonstrated that Ms. Machado lacked reasonably adequate knowledge and technical competence to engage in the transaction of insurance. The Department presented no evidence to establish any standards of skill, ability, knowledge, or competence by which Ms. Machado's acts or omissions can be judged to determine if she committed any of the violations with which Ms. Machado is charged. It is not possible to determine from the evidence presented if Ms. Machado's actions deviated from a standard of fitness or trustworthiness which a reasonably prudent insurance agent would be expected to exhibit under the circumstances or if Ms. Machado's conduct fell below a standard establishing the degree of knowledge and technical competence which a reasonably prudent insurance agent would be expected to exhibit under the circumstances. 2/ The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado engaged in any unfair method of competition or deceptive practices or knowingly made any misrepresentations to Ms. Baldor regarding health insurance coverage. The uncontroverted evidence establishes that Ms. Machado took some minimal information from Ms. Baldor and told her she would place her in a group for health insurance coverage. The uncontroverted evidence further establishes that Ms. Machado did not represent to Ms. Baldor that she would place Ms. Baldor in any specific group, that she would place Ms. Baldor with any particular insurance company, 3/ or that Ms. Baldor would be provided with any specific coverage or benefits. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado knowingly collected from Ms. Baldor any sums in excess of premium because, at the time Ms. Machado collected the two checks from Ms. Baldor, Ms. Machado did not know which insurance company would write health insurance coverage for Ms. Baldor and, therefore, did not know what the premium would be. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado knowingly collected from Ms. Baldor any premium for insurance that was not, in due course, provided. The uncontroverted evidence establishes that Ms. Machado initially agreed to procure health insurance coverage for Ms. Baldor; however, because of her pregnancy, Ms. Machado referred Ms. Baldor to the Durey Insurance Group approximately ten days after Ms. Machado's only meeting with Ms. Baldor and advised Ms. Baldor that the Durey Insurance Group would assist Ms. Baldor in obtaining health insurance. There is no persuasive evidence establishing that Ms. Machado knew or should have known that Durey Insurance Group would not, in due course, provide legitimate health insurance coverage to Ms. Baldor. The evidence presented by the Department is not sufficient to establish that Ms. Machado had any involvement, directly or indirectly, in the transaction in which the Durey Insurance Group identified Ms. Baldor as an employee of "International Marketing" and obtained health insurance for Ms. Baldor with the Neighborhood Health Partnership as a member of the "International Marketing Group." 4/ Furthermore, the evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado's actions made her a source of injury to Ms. Baldor or anyone else. As noted above, the uncontroverted evidence establishes that, soon after Ms. Machado's visit with Ms. Baldor on March 10, 1999, Ms. Machado advised Ms. Baldor that she could not act as Ms. Baldor's agent in placing her with a health insurance company, that she had sent Ms. Baldor's information and checks to the Durey Insurance Group, and that Ms. Baldor should contact the Durey Insurance Group for further assistance. Ms. Baldor's contacts subsequent to the latter part of March 1999 with respect to her health insurance coverage were exclusively with personnel who purported to be affiliated with the Durey Insurance Group. A representative of the Durey Insurance Group notified Ms. Baldor that her health insurance would be provided by the Neighborhood Health Partnership, and Ms. Baldor's premium checks were made payable to the Durey Insurance Group. Finally, the Neighborhood Health Partnership Enrollment Form identifying Ms. Baldor as an employee of International Marketing is dated approximately two months after Ms. Machado's last contact with Ms. Baldor, and the Department failed to present any evidence tending to establish that Ms. Machado had any involvement in the preparation of this form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a final order dismissing the Amended Administrative Complaint against Ingrid Machado. DONE AND ENTERED this 15th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 15th day of November, 2000.
The Issue Whether or not Petitioners are entitled to add an above-the-age-limits child, who became handicapped after their initial enrollment in the state insurance program, as an eligible dependent.
Findings Of Fact Petitioners are Robin A.C. Fearn, SSN 269-36-8341, an employee at the Marion County Correctional Institution since May 23, 1986, and his wife, Mary Fearn, SSN 273-36-8629, an employee of the University of Florida since September 5, 1978. Effective June 1, 1986, Petitioners were enrolled in the Spouse Program under the State of Florida's Employees' Group Health Self Insurance Plan. Participants in the Spouse Program are entitled to family coverage for themselves and any eligible dependents. Petitioners are the parents of a son, Lee A. Fearn, SSN 264-39-0713 who was born on February 27, 1961. At the time of Petitioners' initial enrollment in the health plan on June 1, 1986, Lee was 25 years of age and had exceeded the maximum dependent age limit of 23 years of age provided under the plan. Lee has not, at any time, been covered as a dependent under the State of Florida Employees' Group Health Insurance Plan. Shortly after his 29th birthday, Lee Fearn was rendered disabled from injuries received in an automobile accident in March 1990. Since that accident, Lee has been dependent on Petitioners for support. The Federal Social Security Administration has accepted him as dependent on his parents, and Respondent does not dispute that Lee is "incapable of self-sustaining employment by reason of such mental or physical handicap and chiefly dependent upon the employee" as that term is used in Rules 60P-1.003(4)(c) and (d) F.A.C. [formerly Rule 22K- 1.103(4)(c) and (d) F.A.C.] Petitioners attempted to secure health insurance coverage for Lee during the open enrollment periods in 1991 and 1992 by listing Lee as an eligible dependent in the space provided for adding dependents on the bottom half of their annual open enrollment form. As a part of its insurance program, the Respondent permits State employees to enroll in the State of Florida Employees' Group Health Self Insurance Plan (Plan) within 31 days of employment or during an annual open enrollment period as described in its Rules 60P-2.002 and 60P-2.003 F.A.C. The annual open enrollment form is titled, "Annual Benefit Selection Form." All state employees are asked to complete and return this form during each annual open enrollment period. It provides, in pertinent parts, as follows: "You must make a decision on each benefit. . . . Add only those dependents not currently covered by your health insurance. Eligible dependents are those outlined in Rule 22K-1 F.A.C." (Emphasis supplied) Employees wishing to make changes in their current health insurance are permitted to do so during the open enrollment period by indicating those changes on the Annual Benefit Selection Form. No health examination or declarations, even of a preexisting condition, are required during this annual open enrollment period. Employees are given five options regarding their health insurance on the Annual Benefits Election Form: Make no changes; Cancel Enroll Change from HMO Plan to State Self-Insured Plan or vice versa; and Change from individual coverage to family coverage or vice versa. Petitioners separately completed their Annual Benefits Selection Forms during the 1992 open enrollment period by indicating they did not wish to make any changes in their health insurance coverage, that is, family PPC coverage. At the bottom of the Annual Benefits Selection Form, Petitioners added Lee as a dependent and authorized payroll deductions and stated "I understand my enrollment or coverage changes will be effective January 1, 1993 . . ." (Emphasis supplied) Petitioners claim they submitted a similar form in 1991 and never received notice from Respondent of the acceptance or denial of their 1991 open enrollment request to add Lee as their dependent. Petitioners did receive back a denial in the form of two memos via the University of Florida personnel department, which employs Mrs. Fearn, for their 1992 open enrollment request. Verla Lawson, Department of Management Services, [formerly Department of General Services] Division of State Employees Insurance, State Enrollment Administrator, testified as to how the open enrollment plan and applicable rules have been administered. She has been employed with the agency since 1986, but her involvement with the pertinent issues appears to have begun only with her assuming her present position in 1991. Ms. Lawson testified that to accomplish Petitioners' goal of adding Lee to their coverage as a dependent they "should have" checked the box for "I wish to change" at the top of the form, filled out the dependent information at the bottom of the form and then made out another form for PPC coverage. From this portion of Ms. Lawson's testimony, it is inferred that the annual open enrollment form a/k/a the Annual Benefits Selection Form also constitutes the "Health Care Option Selection Form" referenced in Rule 60P-2.002 F.A.C. Ms. Lawson also testified that even if Petitioners had made out both forms required, the agency would have denied coverage of Lee. According to Ms. Lawson, employee participation in the Plan is considered continuous unless an employee elects to discontinue participation or to change to an HMO. She stated that although employees are asked to return open enrollment Annual Benefit Selection Forms each year for administrative purposes, they are not required to re-enroll in the Plan during each open enrollment period. If an employee indicates no changes on an Annual Benefit Selection Form, that form is not transmitted by an employee's local personnel office to the Department of Management Services in Tallahassee. Ms. Lawson conjectured that is what happened to Petitioners' 1991 attempts to add Lee to their coverage. However, Ms. Lawson consistently referred to the Annual Benefit Selection Form as "the enrollment form" for the Plan, and Mr. Fearn testified credibly that he was advised by his supervisor that his coverage would be terminated if he did not turn in his form timely. The language on the form reflects the same compulsory instruction. (See FOF 7). It is accepted, pursuant to Mr. Fearn's testimony and within the parameters of Section 120.58(1)(a) F.S.. that Mrs. Fearn was told that submission of the annual open enrollment form was necessary to prevent termination of her coverage. Also, according to Ms. Lawson, the agency interprets its rules to permit employees to add additional eligible dependents within 31 days of the acquisition of that dependent or during the open enrollment period, and the Plan has been administered to permit above-the-age-limit handicapped children to be added only during the employee's or retiree's initial enrollment in the Plan. The agency interprets Rules 60P-2.001 and 60P-2.002 F.A.C. and Section 110.123(2)(b) F.S. to mean that only employees, retirees or spouses of deceased employees may apply for "enrollment" in the Plan, that eligible dependents merely "participate" in the Plan under an existing family coverage when added as dependents, and that consequently, dependents do not independently "enroll" in the Plan. The agency therefore decided that Petitioners' 1992 attempts to add Lee Fearn to his parents' existing family coverage as a dependent did not constitute an "enrollment" which by its own terms created the opportunity to enroll an above-the-age-limits handicapped child. Because under this interpretation Lee Fearn was not an eligible dependent, the agency felt he could not have been added to Petitioners' coverage. Ms. Lawson was not familiar with any case with facts similar to this one. According to Ms. Lawson, if Petitioners had been first employed in 1992 and enrolled in the Plan within 31 days of that first employment, their handicapped over-age son could have been covered, and if they had been employed in 1986 but waited until 1992 to enroll for the first time in the Plan, their handicapped over-age son could have been enrolled at that time. Ms. Lawson specifically stated she could not say how the agency would proceed if the Petitioners herein dropped their coverage for one year and then tried to enroll both parent employees and the over-age handicapped child during a new employee 31 day grace period or an annual open enrollment. Ms. Lawson was not clear on what the agency might do if one or both of Lee's parents accepted employment elsewhere and later returned to government service and applied for the Plan, except that state retirement rules possibly would govern the length of a permissible break in service. Ms. Lawson was not asked, and therefore the record is barren of any explanation of how, the agency would interpret its rules if one parent were employed without covering Lee and the other were later employed and wished to cover him as an over-age dependent handicapped child within the second parent's first 31 days of initial employment. However, the agency maintained that there is no provision in the Plan allowing an employee who is already enrolled in the Plan to add a handicapped over-age child and that its rules have never been interpreted to permit the adding of such a dependent at annual open enrollment. Rule 60P-1.003(4)(c) F.A.C., as interpreted by the agency, applies to a handicapped dependent child already in the Plan who then turns nineteen. Rule 60P-1.003(4)(d) F.A.C., as interpreted by the agency, applies only to a handicapped dependent child not in the Plan at the time of the parent- employee(s) initial enrollment. The word "enroll" as used in Rule 60P-1.003(13) F.A.C. is interpreted by the agency to mean "change or transfer plans" under the program, if an employee is already enrolled in any state insurance program at all (PPC Plan or HMO). The agency interprets the same word to mean "enroll" if the employee has never before been enrolled in any state insurance program. Under the provisions of Section 110.123(5), F.S. the Secretary of the Department of Management Services is given the responsibility for administering the state group insurance program. Inherent in that responsibility, but subject to prior legislative approval, is the authority to determine benefits and the contributions required therefor. Such determinations, whether for a contracted plan or a self-insurance plan, do not constitute "rules" within the meaning of Section 120.52(16) or "orders" within the meaning of Sections 120.52(11) F.S. The purpose of this exception to the Administrative Procedure Act is to afford the Department flexibility to make benefit changes or clarifications consistent with legislative approval. Respondent modified its January 1, 1993 edition of the Benefit Document to reinforce its interpretation that above-age-limits handicapped children could only be added during an initial enrollment, but this information was not provided to employee consumers until after the instant case was already in progress. There was no actuarial or expert insurance evidence to show that the legislature by its statutes or the agency by its rules had made a conscious and reasonable decision to treat the over-age handicapped children of longtime employees differently than the over-age handicapped children of brand-new employees or employees who have had a significant interruption in government service or that there is any reason or purpose for such a distinction.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered enrolling Lee Allen Fearn SSN 264-39-0713 as an eligible dependent of Robin A.C. Fearn and Mary E. Fearn in the State Health Plan effective January 1, 1993 and that all eligible claims for his medical expenses after January 1, 1993 be paid. RECOMMENDED this 1st day of April, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1994. APPENDIX TO RECOMMENDED ORDER 93-5859 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioners' PFOF: Petitioners' proposed recommended order does not comply with the rules of the Division of Administrative Hearings as to designating proposed findings of fact and conclusions of law separately or numbering same. It appears to present only conclusions of law or a final recommendation. It is rejected as proposed findings of fact. As proposed conclusions of law and legal argument it has been covered but not necessarily adopted in the recommended order's conclusions of law. Respondent's PFOF: 1-2 Accepted. 3 Accepted in part and rejected in part as legal argument or mere recitation of one person's testimony. Covered in FOF 17. 4-5 Accepted. 6-10 Rejected as legal argument or mere recitation of testimony, covered in FOF 17-25. COPIES FURNISHED: Robin A.C. & Mary E. Fearn 3241 NW 41st Avenue Gainesville, FL 32605 Augustus D. Aikens, Jr., Esquire DMS/Division of State Employees Insurance 2002 Old St. Augustine Road B-12 Tallahassee, FL 32301-4876 William H. Lindner, Secretary Department of Management Services Knight Building Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Sylvan Strickland General Counsel Department of Management Services Knight Building Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue in this proceeding is whether Petitioner is entitled to prospective enrollment in the State Group Insurance Program.
Findings Of Fact In or around May 2010, the Florida Department of Economic Opportunity hired Petitioner as an "Other Personal Services Employment" ("OPS") worker——a category of state employee that that is not entitled to benefits, and, as a consequence, does not participate in the State Group Insurance Program. Petitioner's entitlement to benefits changed, however, on November 22, 2011, when she was promoted to deputy clerk, which is a career service position. At or around that time, Petitioner was informed that she had 60 days from the effective date of her promotion to enroll in any benefit plan for which she was eligible. Benefits, including insurance plans, are administered by a private contractor, NorthgateArinso, through an online system called "People First." Following her promotion, Petitioner, with the assistance of her supervisor, investigated the benefit plans available to her by accessing the "My Benefits" pages at www.myflorida.com. Subsequently, on December 13, 2011, Petitioner logged on to the People First system with the intent to make her benefit elections and complete her enrollment.1/ Upon entering the website, Petitioner properly clicked on the tab labeled "Health & Insurance," which took her to the "Health & Insurance Home Page." At that point, Petitioner was presented with eight icons from which to choose: General Benefits Information Go to the MyBenefits website for your insurance options. Your Benefits Review your benefits and Flexible Spending Accounts. Insurance Companies See contact information. Your Dependents' Information View and update dependents' information. Benefits Choices Enroll or change your benefits. Benefit Premium History Review your insurance. Required Documentation Review status of your documentation. Benefits Materials View and request insurance forms and booklets. Of the foregoing options, Petitioner correctly selected "Benefits Choices," at which point she was navigated to a page that offered her the ability to register any eligible dependents. Not wishing to add any dependents, Petitioner selected the "Go to Next Step" button, which, in turn, took her to a page that listed "Current Plans." (As Petitioner had not previously made any elections, no health, vision, or dental plans were listed below the tab labeled "Current Plans"). Immediately adjacent to "Current Plans" were eleven other tabs: Health; Flex Spend Acct; Basic Life; Optional Life; Dental; Vision; Accident; Cancer; Disability; Intensive Care; and Hospitalization. From these options, Petitioner first selected "Health," which brought up a list of available health insurance plans. At that point, Petitioner chose the box next to the Coventry Health Care individual health insurance plan. Significantly, however, this action did not finalize Petitioner's selection (as explained shortly, no choices are processed until an employee clicks, on a subsequent web page, the "complete enrollment" button). After choosing——but not finalizing——her health insurance coverage, Petitioner clicked on the "Dental" tab. Although the undersigned credits Petitioner's testimony that she selected the box next to one of the available options, there is an absence of evidence concerning the identity of the plan in which she sought to enroll.2/ Next, Petitioner chose the "Vision" tab, which, similar to the "Health" and "Dental" screens, produced a list of available plans. Of the various choices, Petitioner clicked on the box next to the Coventry Health Care individual vision plan. Significantly, and as alluded to above, benefit elections are not finalized in the People First system until two actions are taken: first, the rectangle labeled "Summary/Last Step" must be selected, which leads to a screen titled "Process Benefit Elections"; and, once taken to the "Benefits Elections Page," the employee must click the shaded rectangle titled "Complete Enrollment." Upon the completion of these steps, a confirmation page appears that lists the employee's name and People First identification number; the page also reads, in pertinent part, "Please save or print for your records . . . This is your confirmation of benefits through the State Group Insurance Program." Notably, the record is devoid of evidence that such a confirmation page was ever generated. While Petitioner's testimony that she "checked the boxes" next to her desired benefits plans has been credited, the undersigned is not persuaded by the greater weight of the evidence that Petitioner completed the process' final two steps on December 13, 2011,3/ or on any other occasion prior to the expiration of the 60-day deadline.4/ On or about January 26, 2012, Petitioner became concerned that she had not received any materials concerning the insurance plans in which she thought she had enrolled. On that date, Petitioner telephoned the People First hotline and, at some point during the conversation that ensued, was informed that there was no record of any benefit elections having been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order denying Petitioner's request to enroll in the State Group Insurance Program. DONE AND ENTERED this 4th day of October, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 4th day of October, 2012.
The Issue The issues are whether Respondent committed the acts and omissions alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed in Florida as a life, life and health, general lines--property and casualty, and health agent. His license number is A081006. Respondent was initially licensed on July 24, 1978. He was licensed as a health insurance agent in May 2000. At no time has Local 16, United States Workers of America Local 16 National Health Fund, IIAWU National Health Fund, or Local 16 National Health ever been licensed or authorized to do business in Florida as a life and health insurance company or reinsurance company. All references in this Recommended Order to "Local 16" include all of these entities. Patricia Holdridge is the owner of Patty Contracting Corporation, doing business as East Coast Electric and Mr. Electric (East Coast Electric) in Sebastian, Florida. She has owned East Coast Electric for 11 years. In May 2000, Ms. Holdridge served as the manager of East Coast Electric. In that capacity, she met with Respondent, who was an agent employed by Stuart Insurance, Inc., in Palm City, Florida. Respondent visited Ms. Holdridge's office and dropped off literature on group health insurance. Ms. Holdridge spoke with Respondent about her company's insurance needs. At the time, the company had temporary health insurance, following the insolvency of the prior health insurer. Respondent said that he could provide health insurance for the company's ten or eleven employees. After agreeing to the details of the new health insurance, Ms. Holdridge met with Respondent another time to sign the papers. At this time, she learned that a labor union was somehow involved. She told Respondent that there was no way that a labor union could be involved because her company could not afford to pay union wages to its employees. Respondent assured Ms. Holdridge that the union's participation in the health insurance was a "technicality." He told her that the union would never contact her or interfere with her business. Ms. Holdridge accepted this explanation, emphasizing again that no union could be involved with her company. The paperwork that Respondent produced for Ms. Holdridge to complete included an application for health insurance. One form was a Member Enrollment Application with the Local 16 National Health Fund in Newton, New Jersey. The application is for health insurance and asks basic questions concerning the insureds' medical and claims history. Another form in the package that Respondent gave Ms. Holdridge was a Membership Application with "USWA, Local 16, TCIU, AFL-CIO, CLC," also in Newton, New Jersey. Another form in the package was an "Application and Representatvie [sic] Authorization [for] Affiliated Business Trade Services," in Jacksonville. The materials that Respondent supplied Ms. Holdridge included descriptions of two plans, with differing co-payment amounts, with premiums set by the age groups containing the employee and his or her covered family members. The two plans were the "80/60" plan and the "90/70" plan. The Summary of Benefits for the 80/60 plan lists numerous covered types of services and assures 80 percent payment after deductible for listed providers and 60 percent payment after deductible for nonlisted providers. The Schedule of Benefits Summary for the 90/10 plan lists numerous covered types of services and assures 90 percent payment, purportedly without any copayment, for listed providers and 70 percent payment after deductible for nonlisted providers. A second Schedule of Benefits Summary for the 90/10 plan also bears the heading, "Local 16 National Health Fund." Respondent also provided Ms. Holdridge with insurance identification cards. The health insurance card is entitled, "USWA Local 16 TCU-AFL-CIOP, CLC National Health Fund." The dental insurance card is entitled, "Local 16 National Health Fund." After signing up for the insurance, East Coast Electric received invoices from Local 16. These invoices were broken down by employee and included entries for "welfare fund," "dues," and "ABTS." The amount entered for "welfare fund" is the premium for each employee's health insurance, based on the type of coverage and numbers and ages of dependents. The invoices directed East Coast Electric to pay this sum to Local 16, National Health Fund." The amount entered for "dues" is for union membership dues. The invoices directed East Coast Electric to pay this sum to Local 16, TCIU. The amount entered for ABTS is for the Affiliated Business Trade Services. The invoices directed East Coast to pay this sum to Affiliated Business Trade Services. The invoices directed East Coast Electric to send all of its payments to Affiliated Business Trade Services. At some point after signing up for the insurance, Respondent provided Ms. Holdridge with a Labor Agreement to sign. This detailed agreement provided that USWA Local 16 TCIU, AFL-CIO, CLC had been designated by a majority of the employer's employees to act as the exclusive bargaining agent. Ms. Holdridge refused to sign the agreement, and she heard nothing about her refusal to sign. East Coast Electric paid Local 16 a total of $32,000 from June 1, 2000, for group health insurance for its employees. Numerous employees of East Coast Electric signed up for the group health insurance offered by Local 16. Each of them signed forms indicating that he or she was joining the union, but none of them intended or wanted to join Local 16. Each employee understood that he or she was merely signing up for group health insurance. Allen Baurley was an electrician with East Coast Electric when the company purchased health insurance from Local After obtaining coverage with Local 16, Mr. Baurley suffered a sudden illness for which he submitted covered medical bills of over $34,000. Local 16 never paid any of these claims, in whole or in part. Mr. Baurley has paid $5000 of this debt through monthly payments and incurred $3500 in legal fees defending himself in a collection action brought by the hospital. Holly Emard was the office manager of East Coast Electric when the company purchased health insurance from Local 16. She signed up for group health insurance from Local 16. She incurred $300 in covered medical expenses, which Local 16 did not pay. Ms. Emard also handled communications between East Coast Electric and Local 16. As medical expenses went unpaid, she would contact Respondent, who offered to relay medical bills to Local 16. Sometimes, when she followed up, Respondent would claim not to have received the bill, and sometimes he would say that the union would be cutting checks later in the month. One time, Respondent suggested that Ms. Emard send an unpaid bill to a specified person with Local 16. Respondent was always very nice to Ms. Emard, but he did not help much with the payment problems. Eventually, Ms. Emard was spending half of her day on health insurance matters. Maurice Gay, Jr., was a scheduler and estimator with East Coast Electric when the company purchased health insurance from Local 16. Of the $1700 of covered medical expenses that he submitted to Local 16, the union health fund paid only $12. Mr. Gay's then-wife had a serious, lifetime pre-existing condition that had been covered by other health insurance. Induced by Respondent's representations of coverage from Local 16, she dropped her other insurance and enrolled with Local 16. When she tried to obtain health insurance elsewhere, after her adverse experience with Local 16, she found that insurers treated her situation as a lapse in coverage, so she incurred over $4000 in uncovered medical expenses--resulting in monthly payments to her health care providers and referrals to collection agencies. Catherine Desmarais was the only witness who was victimized by the sale of Local 16 group health insurance, but was not an employee of East Coast Electric. Ms. Desmarais was an accountant employed by Beacon Accounting Services, Inc., in Palm City, Florida, when the company purchased health insurance from Local 16. Ms. Desmarais testified that she never met Respondent. She signed up for group health insurance from Local 16 for herself, her husband, and two of her children sometime in 2000. Her supervisor at work informed her that she had to join Local 16, and Ms. Desmarais did so, although there was no union, shop steward, or other evidence of union activities at Beacon Accounting after she enrolled. Beacon Accounting employees joked at times, saying a supervisor could not do something, or else they would call the union. Ms. Desmarais' first attempt to use the Local 16 health insurance was when she tried, unsuccessfully, to fill a prescription. When the pharmacy refused to honor her insurance card, Ms. Desmarais told her supervisor, who suggested that she speak with Respondent. Ms. Desmarais telephoned Respondent, who said that someone else had had a similar problem and that he had already called someone in New Jersey and had corrected the problem. However, Ms. Desmarais eventually incurred about $3500 in covered medical expenses, for which Local 16 paid nothing. Later, in November 1991, after learning that Local 16 had filed for bankruptcy, Ms. Desmarais contacted Respondent, who informed her and her employer of another self-insured plan. However, Beacon Accounting elected to purchase group health insurance elsewhere. On November 15, 2002, a general adjuster for Fireman's Fund Insurance Company wrote Ms. Desmarais a letter in connection with its insured, Stuart Insurance. The letter attempts to initiate a process to conclude outstanding claims that arose when Local 16 became insolvent. The letter explains that its author was having difficulty linking Ms. Desmarais to a Local 16 group health policy. However, Ms. Desmarais produced at the hearing a copy of her Local 16 National Health Fund insurance identification card, which bears her name. Given the numerous administrative problems that East Coast Electric had with Local 16, the obvious explanation is that Local 16's poor recordkeeping resulted in the misplacing of Ms. Desmarais' insurance file. The employees of East Coast Electric never organized, never joined Local 16, never engaged in collective bargaining, and never negotiated the subject plan pursuant to any collective bargaining or union membership. At all material times, Respondent was aware of all of these facts, as he fraudulently required the employees of East Coast Electric to falsely indicate that they were or were applying to become members of Local 16. As marketed to persons who were not members or participants of Local 16, the subject plan was not an "employee benefit plan," as that term is described below. The subject plan was never an insured plan, as described below. If it had qualified as an "employee benefit plan," the subject plan would have been a "multiple employer welfare arrangement," as described below. United States Workers of America Local 16 National Health Fund filed for protection under Chapter 7 of the Bankruptcy Code the United States Bankruptcy Court, District of New Jersey (Newark Division), Case No. 01-42881, on November 27, 2001. The case is still pending.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order revoking Respondent's license. DONE AND ENTERED this 30th day of December, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of December, 2003. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 David J. Busch Philip M. Payne Department of Financial Services and Chief Financial Officer Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Edward Michael Farley Post Office Box 1696 Palm City, Florida 34991
Findings Of Fact Petitioner resigned from State Government on July 23, 1987. At the time of his resignation, Petitioner was covered under the Florida State Group Health Insurance Plan. His wife, who is a diabetic, was also covered under Petitioner's insurance. Upon termination Petitioner was eligible for continuation of coverage benefits under the federal COBRA Act. However, prior to receiving any notice of his COBRA rights, Petitioner elected to continue his State Employees' Insurance for two months from July 1, 1987 and then begin coverage under his new employer's insurance plan. 2/ Petitioner made advance payment on the 2 months additional coverage. The payments carried his State Employees' health insurance through September 1, 1987 when it was terminated. DOA notified Petitioner on August 27, 1987, of his right to elect continuation of coverage under the COBRA Act. This notice complied with the notice requirements under the COBRA Act. COBRA provides continued health insurance coverage for up to (18) months, after a covered employee leaves employment. However, coverage does not continue beyond the time the employee is covered under another group health plan. COBRA simply fills the gap between two different employers group health insurance plans so that an employee's group health insurance does not lapse while the employee changes jobs. Petitioner's new employer's health coverage began around September 1, 1987. After Petitioner had begun coverage under his new insurance plan, he discovered that his wife's preexisting diabetic condition would not be covered. However, no evidence was presented that Petitioner, within 60 days of September 1, 1987 requested the Division of State Employee's Insurance to continue his insurance coverage pursuant to COBRA. Moreover, Petitioner's COBRA rights terminated when he began his coverage under his new employer's health plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Petitioner's request for continuation of coverage under COBRA. DONE and ENTERED this 5th day of April, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1989.
The Issue This is a proceeding under Section 408.7056, Florida Statutes, in which the basic issue is whether the Petitioner's denial of a request that it cover certain speech therapy treatments for an insured was appropriate or inappropriate. The Respondent contends that the subject speech therapy was covered under the subject plan, and should be provided to the insured.
Findings Of Fact The Petitioner, Neighborhood Health Plan, is a health maintenance organization which has been granted a certificate by the Respondent. In the fall of 1995, the Petitioner issued a policy of health insurance to a small business corporation owned by Mr. F. S. The policy covered Mr. F. S. and his dependents, including his wife and children. The family's membership in the Petitioner's plan began on or about October 1, 1995. The subject health insurance policy has been in effect without interruption since its inception. At all material times, F. S., Jr., the minor son of Mr. and Mrs. F. S., has been a covered dependent under the subject health insurance policy. In the normal course of events, when the Petitioner issues a new health insurance policy, it also delivers to the insurance business a Group Service Agreement and a Member Handbook. Mr. and Mrs. F. S. received a copy of the Member Handbook on or near the date on which the policy was issued. Mr. and Mrs. F. S. did not receive a copy of the Group Service Agreement until sometime in early 1998 after they had filed a grievance regarding coverage denial. Shortly after the inception of the health insurance policy, Mrs. F. S. took her children for an introductory meeting with the pediatrician who was their new primary care physician under the terms of the health insurance policy. That pediatrician referred F. S., Jr., to Dr. Carlos Gadia, a pediatric neurologist. Following a neurological evaluation of F. S., Jr., Dr. Gadia concluded that F. S., Jr., had the following medical problems: expressive language disorder, dyspraxia, and dysgraphia. Expressive language disorder is an impairment of the ability to communicate one's experiences, ideas, or feelings to others. Dyspraxia is an impairment of the ability to coordinate movement, or to perform coordinated acts. Dysgraphia is the impairment of the ability to perform the movements required for writing, such as holding and moving a pencil across paper. Dr. Gadia recommended an electroencephalogram and other specific follow-up testing. Dr. Gadia also concluded that F. S., Jr., ". . . should be started on physical and occupational therapy. He should also benefit from more intensive speech therapy. " Beginning on or about November 1, 1995, the Petitioner pre-authorized speech therapy and occupational therapy for F. S., Jr. The Petitioner required the treatment providers to submit treatment plans and progress reports every two months to justify the authorization of further treatment sessions. Using this procedure, the Petitioner continued to authorize speech therapy and occupational therapy for F. S., Jr., without interruption through the end of 1997. In the fall of 1997, the Petitioner's medical department concluded that it had been administering the benefits for speech therapy and some other forms of therapy more generously than was provided for in the Group Service Agreement. The Petitioner then began the process of reviewing the records of each patient who was receiving therapy, in order to determine whether the therapy being provided to each patient was covered by the provisions of the Group Service Agreement. During the course of such review, the Petitioner concluded that F. S., Jr., should not have received speech therapy benefits because his disability appeared to be "developmental" or congenital, rather than "acquired." In late 1997, F. S., Jr.'s, primary care physician requested authorization from the Petitioner for additional speech therapy services for F. S., Jr., to be provided in 1998. By letter dated January 8, 1998, the Petitioner advised the primary care physician that the request was denied. A copy of the letter was sent to Mr. and Mrs. F. S. The letter of January 8, 1998, stated, in pertinent part: You have requested the above referenced member to receive Speech Therapy. This request has been reviewed by a physician through the Medical Management Program and has been denied. The service requested does not meet medical criteria for coverage. Therefore this service cannot be authorized for payment. Mr. and Mrs. F. S. promptly initiated the grievance procedure provided for by the Petitioner. During the course of the grievance process, a representative of the Petitioner explained that the coverage for speech therapy had been denied because, in the opinion of the Petitioner's medical department, F. S., Jr.'s, need for speech therapy was occasioned by a learning disability or a developmental disability, and not by an "acquired disability." Representatives of the Petitioner also explained that they would provide coverage for the speech therapy, if it could be established that F. S., Jr., had an "acquired disability." Mrs. F. S. contacted Dr. Gadia, the neurologist, and asked whether he could determine whether her son's condition resulted from a congenital cause or from an acquired cause. Dr. Gadia was unable to make the requested determination due to insufficient information. By letter dated March 27, 1998, the Petitioner resolved the grievance by denying coverage for the requested speech therapy. The letter stated, in pertinent part: On March 23, 1998 the Grievance Committee of Neighborhood Health Partnership met to review your grievance. After thorough review and discussion, the Grievance Committee decided to uphold its original decision and voted to deny payment for services rendered to your son, F. S., for Speech Therapy. The decision to uphold the denial was based on the Group Service Agreement, Article VII, Exclusions and Limitations, which indicate that treatment of learning disabilities, mental retardation and other developmental disorders, including, but not limited to, learning disorders, motor skills disorders, communication disorders and autistic disorders, are not covered. There is anecdotal evidence which suggests the possibility that F. S., Jr.'s, speech disabilities are inherited. There is anecdotal evidence which suggests the possibility that F. S., Jr.'s, speech disabilities are the results of injury during the course of his being delivered by the use of forceps following a difficult period of labor. None of the anecdotal evidence is sufficient to establish one cause or to rule out the other. Similarly, none of the medical records contain sufficient information for a physician to express an expert opinion as to whether F. S., Jr.'s, speech disabilities are the result of one cause or the other. There is a high probability that one cause or the other could be ruled out by an MRI examination. Like most group health insurance policies, the contract in this case was expressed in two documents, a Group Service Agreement and a Member Handbook. The Group Service Agreement, which is typically furnished to the employer, but not to the individual insureds, is the basic insurance agreement. It sets forth the terms and conditions of the insurance agreement and specifically includes statements describing what is covered, describing any limitations on coverage, and describing what is excluded from coverage. The Member Handbook, which is typically the only document furnished to the individual insureds, is a summary of the benefits available under the insurance agreement. In this case the Member Handbook, in effect from October 1996 to the present, specifically stated on the inside front cover: "The following information constitutes a summary of the benefits available under the Group Service Agreement. You must refer to the Group Service Agreement for a detailed explanation of available benefits." The Group Service Agreement in effect from October 1996 to the present contains the following coverage provision: Outpatient Therapies. Physical, respiratory, speech, or occupational therapies for purposes of rehabilitation of an acquired disability, when, in the opinion of the Plan Physician, such therapy will result in optimal improvement in the patient's condition within two (2) months. In no event will the maximum benefit exceed 60 visits per Calendar Year for all services combined. The Member Handbook in effect from October 1996 to the present contains the following coverage provision: Therapy Services Physical, respiratory, speech and occupational therapy. Such coverage will only be provided for rehabilitation of a disability if in the opinion of your PCP, such therapy will result in optimal improvement in your condition within two (2) months. Limited to sixty (60) visits per Calendar Year for all services combined. The Group Service Agreement in effect from October 1996 to the present contains the following exclusions: 11. Treatment of learning disabilities, mental retardation, and other developmental disorders including, but not limited to, learning disorders, motor skills disorders, communication disorders, and autistic disorders; * * * 19. Physical, respiratory, occupational, or speech therapy in excess of 60 visits per Calendar Year; The Member Handbook in effect from October 1996 to the present contains the following exclusions: Physical, respiratory, occupational, or speech therapy in excess of 60 visits per Calendar Year for all services combined. * * * Treatment of learning disabilities, mental retardation and developmental disorders, including but not limited to, learning disorders, motor skills disorders, communication disorders, and autistic disorders.
Findings Of Fact Petitioner is an employee of the State of Florida, and was at all times pertinent, a member of the State Group Health Insurance Program administered by Blue Cross and Blue Shield of Florida, Inc. In March of 1984, Petitioner was hospitalized due to severe indigestion and abdominal pain. Petitioner was discharged from the hospital and informed by his physician that if his condition worsened, surgery would be necessary. Petitioner's condition worsened and on May 28, 1984, his physician, R. Klein Bowen, M.D., admitted him to the hospital with a pre-operative diagnosis of chronic acalculus cholecystitis which is chronic inflammation of the gallbladder. On May 29, 1984, said physician operated upon petitioner and his operative report listed the following under the title "Operation": Cholescystectomy. Attempted operative cholangiogram. Incidental appendectomy. The description of the operative procedure stated in the operative report (Respondent's Exhibit 1) establishes that the appendectomy which was performed was accomplished through the same incision which was made for performing the cholescystectomy (gallbladder removal). The operative report stated that the appendix was not acutely inflamed. Subsequent to the operative procedures the Petitioner filed a claim with the State Group Health Insurance Plan administrator, seeking payment for the following charges: May 28, 1984, $90.00 for consultation and case history preparation prior to surgery; May 29, 1984, $1,350.00 Cholescystectomy; May 29, 1984, $375.00 Appendectomy. All of said services were performed by R. Klein Bowen, M.D. The State Group Health Self-Insurance Plan paid the charge for the cholescystectomy and denied the claims for consultation and case history preparation prior to the surgery and for the appendectomy. The State Self- Insurance Plan justified its denial of Petitioner's claim for the above benefits based upon limitations it alleged were contained in the State of Florida Employees' Group Health Self-Insurance Plan Benefit Document (Respondent's Exhibit 2). Section VIII entitled "Limitations" in paragraph I. specifies that payment may be made for in-patient medical care physician visits in addition to payment for surgery only when the condition which required medical care is not related to the surgery and does not constitute a part of the pre-operative or post-operative care. Additionally, Section VIII, F. specifies that no additional payment shall be made for a surgical procedure which is an incidental procedure performed through the same incision. Petitioner did not dispute the provisions which Respondent alleged were limitations justifying denial of payment, although he asserted that the provisions contained within the Group Health Self-Insurance Plan Benefit Document were not cost effective and would result in additional expenses and lost time from work and were worthy of reconsideration. However, Petitioner did not present any competent evidence to support his claim or refute the limitations relied upon by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the Petition. DONE and ENTERED this 14th day of May, 1985, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1985. COPIES FURNISHED: Gerald B. Richardson 2909-198 South Semoran Boulevard Orlando, Florida 32822 Richard L. Kopel, Esquire Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue The principal issue in this case is whether the Petitioner is entitled to reimbursement under the State of Florida Group Health Insurance Plan for certain health care expenses she has incurred since she became a State employee and enrolled in the Plan. The Petitioner contends that she is entitled to reimbursement and to attorney's fees. The Respondent contends that the Petitioner is entitled to neither. The central factual dispute is whether the Petitioner's claim for benefits is barred by the provision in the Plan which excludes benefits for pre-existing conditions during the first 365 days of participation in the Plan. At the formal hearing in this case, the Petitioner testified on her own behalf and also presented the testimony of Donald M. Whitley, II, Ph.D. The Respondent presented the testimony of Mr. William Seaton. Both parties offered exhibits. Also, the parties stipulated to the filing of the transcript of the deposition of F. A. Munasifi, M.D., as a late-filed exhibit. Subsequent to the hearing both parties filed proposed recommended orders, which have been carefully considered during the preparation of this recommended order. Specific rulings on the findings of fact proposed by both parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on admissions Petitioner, Terri J. Ganson, (hereinafter "Petitioner" or "Ganson") enrolled in the State of Florida Group Health Insurance Plan (hereinafter "Plan") in January, 1986, and has been validly enrolled as a member in good standing since said date. The pre-existing condition exclusion appears as Subsection VIII.C. of the State Employees Group Self-Insurance Document and provides: For any accident or illness for which an insured received diagnostic treatment or received services within three hundred and sixty-five (365) consecutive days prior to the effective date of coverage, no payment will be allowed for services related to such accident or illness which are received during the three hundred and sixty-five (365) conse- cutive days subsequent to the effective date of coverage; however covered services related to such accident or illness which are received after three hundred and sixty-five (365) consecutive days of coverage are cover- ed by the plan. The Plan, at Subsection I.AE., defines "illness" as follows: "Illness" means physical sickness or disease, pregnancy, bodily injury, congenital anomaly or mental or nervous disorder. Illness for the purposes of this Plan shall entitle an insured to benefits for any medically nece- ssary services related to elective surgical procedures performed by a physician for the purpose of sterilization. By the terms of the Plan, the pre-existing condition paragraph of the Plan applied to claims filed by Petitioner for treatments received during the period from February 1, 1986, until January 31, 1987. Those claims submitted by Petitioner or on Petitioner's behalf for reimbursement under the Plan which were denied on the basis of the pre-existing condition exclusion and which are the subject of this dispute amount to a total of $5,682.15 for services provided by the following providers in the respective amounts shown: a. TMRMC $2,352.65 b. Dr. Shamis $225.50 c. Dr. Munasifi $50.00 d. Biomedical Ref. $50.00 e. Dr. Whitley $3,000.00 The services received by Petitioner for which reimbursement is in dispute were services actually received by Petitioner, Petitioner was charged for such services in the aggregate amounts specified, such services were medically necessary treatments, such services were rendered for the treatment of bipolar disorder, and such services were otherwise covered by the Plan. Petitioner is entitled to reimbursement for the amount of the charges for such services, without limitation or exclusion, if said condition for which services were rendered did not constitute a pre-existing condition (i.e., an "accident or illness" for which Petitioner "received diagnostic treatment or received services within three hundred and sixty-five days prior to . . ." her enrollment in the Plan. Findings based on the testimony and the exhibits Prior to her enrollment in the Plan, the Petitioner had been diagnosed as having situational depression, for which she had received treatment prior to her enrollment in the Plan. Part of that treatment occurred within three hundred sixty-five days immediately preceding Petitioner's enrollment in the Plan. Prior to her enrollment in the Plan, the Petitioner had never been diagnosed as having bipolar affective disorder. Prior to her enrollment in the Plan, the Petitioner had never been treated for bipolar affective disorder. Bipolar affective disorder is believed to be caused by a deregulation of the chemical neurotransmitters in the brain. The primary treatment modality for bipolar affective disorder is the administration of lithium carbonate. The administration of lithium carbonate is specific for bipolar affective disorder and the use of lithium carbonate is one of the main differences between treatment for bipolar affective disorder and the type of depression for which Petitioner was treated prior to her enrollment in the Plan. Behavioral therapy may also be of assistance in the treatment of the symptoms of bipolar affective disorder, as it is in the treatment of the symptoms of other conditions which cause depression. Situational depression and bipolar affective disorder are separate and distinct conditions; they are not the same condition. Specifically, the former is not an earlier stage of the latter. The fact that both conditions have certain common symptoms (i.e., periods of depression) does not mean that they are the same condition.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order to the following effect: Reimbursing the Petitioner for her medical expenses in the amounts stipulated to by the parties, namely, $5,682.15; and Denying the Petitioner's claim for attorney's fees in this proceeding. DONE AND ENTERED this 30th day of November, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1654 The following are my specific rulings on all of the findings of the findings of fact proposed by the parties: Findings proposed by Petitioner: Paragraph 1 (including subparts [a] through [f]): Accepted. Paragraphs 2 and 3: Rejected as unnecessary details in light of admitted facts. Paragraphs 4 and 5: Accepted in substance with most details omitted as unnecessary. Paragraph 6: First sentence accepted. Second sentence rejected as unnecessary details. Paragraphs 7, 8, 9, 10, 11, 12, 13, and 14: Rejected as unnecessary details in light of admitted facts. Paragraphs 15, 16, 17, and 18: Rejected as subordinate and unnecessary details. Paragraph 19: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Paragraphs 20 and 21: Accepted. Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First sentence accepted in substance. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 30, 31 and 32: Accepted in substance. Paragraphs 33, 34, and 35: Rejected as unnecessary details in light of admitted facts. Paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46: Rejected as subordinate and unnecessary details. Paragraphs 47, 48, 49, 50, and 51: Rejected as consti-tuting summaries of argument rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1, 2, and 3: Rejected as unnecessary details in light of admitted facts, with exception of proposed finding regarding effective date of coverage. Paragraphs 4, 5, and 6: Accepted in substance. Paragraph 7: Accepted in substance with unnecesary details deleted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Rejected as unnecessary details in light of the admitted facts and also as not entirely consistent with the greater weight of the evidence. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance as to date of first diagnosis. Rejected insofar as it suggests that Dr. Munasifi "refused" to make a particular statement. Paragraph 13: Rejected as subordinate and unnecessary details. Paragraph 14: Accepted as to nature of diagnosis. The remainder is rejected as subordinate and unnecessary details. Paragraph 15: First sentence is accepted. Second sentence is rejected as contrary to the greater weight of the evidence. Third and fourth sentences are rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 16 and 17: Rejected as subordinate and unnecessary details. Paragraph 18: Rejected as irrelevant and as an over- simplification which suggests an inference not warranted by the greater weight of the evidence. Final unnumbered summary paragraph: Rejected as constituting a summary of testimony rather than proposed findings of fact and, in any event, as subordinate and unnecessary details. COPIES FURNISHED: Kenneth D. Kranz, Esquire Eric B. Tilton, P.A. P. O. Drawer 550 Tallahassee, Florida 32302 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether the Department of Management Services properly denied medical insurance reimbursement to Petitioner, a covered dependent of a state employee insured by the State Employees' Preferred Provider Organization health plan, for Genotropin recombinant growth hormone prescribed for the treatment of long- term growth failure associated with idiopathic short stature.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The state group insurance program is a package of insurance plans offered to, among others, state employees and their dependents. § 110.123(2)(k), Fla. Stat.1/ Petitioner Arturo Puerto is insured as a dependent of a state employee, and is a participant in the state's group self- insured plan, known as the State Employees' Preferred Provider Organization health plan ("PPO plan" or "state plan"). The state plan includes a state employees' prescription drug program. § 110.12315, Fla. Stat. Pursuant to Section 110.123(3)(c), Florida Statutes, the Department is responsible for contract management and day- to-day management of the state employee health insurance program. Section 110.123(5)(c), Florida Statutes, authorizes the Department to contract with an insurance carrier or professional administrator to administer the state plan. The current contract provider of the state plan's pharmacy program is CareMark Inc. ("CareMark"). However, the Department makes all final decisions concerning the existence of coverage or covered benefits under the state plan. The Department's authority in this regard may not be delegated to a contract provider. § 110.123(5), Fla. Stat. Petitioner was born on February 12, 1992. On or about February 3, 2009, Petitioner's physician prescribed Genotropin, a recombinant growth hormone ("GH")2/ approved by the United States Food and Drug Administration ("FDA") as therapy for short stature, including idiopathic short stature ("ISS"). ISS is short stature that does not have a diagnostic explanation, in an otherwise healthy child. ISS is also called "non-GH-deficient short stature." The Group Health Insurance Plan Booklet and Benefits Document, effective January 1, 2007, as modified on January 1, 2009, includes the terms and conditions of participation in the PPO plan and the benefits provided by the PPO plan. The booklet and benefits document contains a section describing the prescription drug program. Participants in the PPO plan are automatically enrolled in the prescription drug program, which features a network of retail pharmacies and a mail order program. The participant makes a co-payment for covered prescriptions. The booklet and benefits document sets forth a list of drugs that are covered, and a list of drugs that are not covered under the prescription drug program. Under the heading "Important Information about the Prescription Drug Program," the document states the following concerning specialty medications:3/ 5. Certain medications, including most biotech drugs, are only available through Caremark Specialty Pharmacy Services. Generally, these drugs are for chronic or genetic disorders including, but not limited to, multiple sclerosis, growth deficiency and rheumatoid arthritis and may require special delivery options, (i.e. temperature control). Caremark Specialty Pharmacy provides 24/7 access and can be contacted at 1-800-237-2767. * * * 12. As part of the Caremark Specialty Services, Caremark will administer the Advanced Guideline Management program for the State Employees' PPO Plan. Advanced Guideline Management is intended to optimize outcomes and promote the safe, clinically appropriate and cost-effective use of specialty medications supported by evidence based medical guidelines. Failure to meet the criteria for Advanced Guideline Management during the respective use review will result in denial of medication coverage for the Plan participant and discontinuation of medication coverage for the Plan participant in the case of concurrent use review. The Advanced Guideline Management Program is a process by which authorization for a specialty medication is obtained based on the application of currently acceptable medical guidelines and consensus statements for appropriate use of the medication in a specific disease state. Therapies reviewed under the Specialty Guideline Management Program include, but are not limited to, the following: multiple sclerosis, oncology, allergic asthma, human growth hormone, hepatitis C, psoriasis, rheumatoid arthritis, and respiratory syncytial virus. Additional therapies may be added from time to time.... CareMark's current guideline covering Genotropin and similar GH medications is set forth in a 2008 CareMark document titled, "Specialty Pharmacy Program for Growth Hormone and Endocrine-Metabolic Disorders." The document contains flow charts describing the criteria employed by CareMark to determine coverage for specific conditions. Among the criteria set forth in the flow chart for prescribing GH to children with ISS is the following question: "Does pre-treatment growth velocity and height meet the AACE (American Association of Clinical Endocrinologists) criteria for short stature?" (See Appendix N). If the answer to the question is "no," then the criteria direct that coverage for the prescription of GH should be denied. Appendix N sets forth the following "AACE criteria for short stature": < -2.25 standard deviations below the mean for age and sex based on patient's growth rate, adult height prediction of less than 5'3" for boys and less than 4'11" for girls. Appendix N is based on the AACE's "Medical Guidelines for Clinical Practice for Growth Hormone Use in Adults and Children-- 2003 Update" and a December 2003 AACE Position Statement on growth hormone usage in short children.4/ The CareMark document is not explicit as to whether the quoted elements of the AACE criteria for short stature are to be considered in the disjunctive. However, the AACE Position Statement expressly states that GH use is indicated for ISS only for children whose height is "< - 2.25 standard deviations below the mean and have an adult height prediction of less than 5'3" for boys and less than 4'11" for girls." (Emphasis added.) The height standard deviation criterion used by CareMark to determine the appropriateness of Genotropin therapy as a treatment for ISS was shown to be consistent with FDA criteria and the specifications established by Pfizer, the manufacturer of Genotropin. The medical records submitted on behalf of Petitioner show that at the time Genotropin therapy was prescribed in February 2009, Petitioner's height was 162.5 cm (5'4"). This was 1.66 standard deviations below the mean for his age and sex. Untreated, his predicted final height was 164 cm (5'4 1/2"). At the time Genotropin therapy was prescribed, Petitioner did not meet the height standard deviation requirement. His height standard deviation was 1.66 standard deviations below the mean. The deviation required by the CareMark criteria was greater than 2.25 standard deviations below the mean. At the time Genotropin therapy was prescribed, Petitioner did not meet the adult height prediction requirement. Petitioner was already 5'4" tall and was projected to reach a height of 5'4 1/2" without treatment. The CareMark criteria required a projected adult height without treatment of 5'3" or below. The PPO plan denied payment for the Genotropin therapy because Petitioner did not meet criteria established by CareMark through its Specialty Pharmacy Program guidelines. The booklet and benefits document makes no provision for exceptions to strict conformity to the CareMark criteria. At the hearing, Petitioner's representative acknowledged that Petitioner does not meet the criteria for Genotropin therapy, but requested that the Department order such coverage as an exception to the criteria.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of State Group Insurance enter a final order denying coverage for Petitioner's prescription for Genotropin therapy. DONE AND ENTERED this 10th day of March, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of March, 2010.
The Issue Whether Mr. Wills is entitled to reimbursement from the State Group Health Insurance Plan for health services provided by an otolaryngologist and a speech pathologist for vocal therapy.
Findings Of Fact The State of Florida makes available to employees several health insurance programs. One of the options available to employees is the State of Florida Employees Group Health Self Insurance Plan. Employees may also enroll in a number of different health maintenance organizations depending upon the county in which the employee resides. The Employees Group Health Self Insurance Plan was established by the Legislature, and its benefits are described in the Benefit Document. The Plan as a whole is administered by Blue Cross-Blue Shield, which did not write the terms of the Plan. When an employee chooses to participate in the Plan, the State contributes to the employee's insurance cost by paying a portion of the premium for the employee in order to be covered by the Plan. Mr. Wills is employed by the State of Florida as the Chief Assistant Public Defender for the Seventeenth Judicial Circuit in Broward County, Florida. Mr. Wills is a Senior Trial Attorney in the Public Defender's Office and a senior administrator who needs his voice to carry on his professional duties. He was a member of the Plan at all times relevant to this proceeding. The case revolves around whether Mr. Wills is entitled to reimbursement for expenses he incurred when he was diagnosed in June 1990 as having a vocal chord lesion, also known as a contact ulcer or granuloma of the vocal fold, and participated in a course of medical treatment for this condition. For example, Mr. Wills would attempt to speak, but portions of words could not be heard. Mr. Wills ultimately was treated by Dr. W. Jarrard Goodwin. Dr. Goodwin is a specialist in diseases of the ear, nose and throat (i.e., an otolaryngologist), and teaches at the University of Miami School of Medicine. Dr. Goodwin was of the view that the lesion was caused by the mechanical banging together of the vocal chords, and that surgery was not an appropriate treatment for him. Instead, he prescribed an antibiotic and three weeks vocal rest. He had a second consultation with Mr. Wills on August 14, 1990, at which time Dr. Goodwin referred Mr. Wills to Donna S. Lundy, a speech pathologist in the Department of Otolaryngology at the University of Miami Medical School, for voice therapy. A contact ulcer or granuloma can result from the pitch of the voice being too high or too low, from speaking too loudly, or from not breathing from the diaphragm. All of these can be treated with behavioral voice therapy through exercises, either to raise or lower the pitch of the voice, or to breathe from the diaphragm and relax the vocal chords in order to decrease effort and strain near the lesion. Mr. Wills saw Ms. Lundy for sessions of vocal therapy at Dr. Goodwin's office on August 11, September 13, October 5, November 11, and December 27, 1990, and Mr. Willis practiced the exercises he was given between appointments. Even if Mr. Wills had had surgery, i.e., a stripping of the vocal chords, an alternative treatment for the contact granuloma, he still would have had vocal therapy following that surgery to modify his vocal habits to prevent a recurrence of the lesion. As a result of the vocal therapy, Mr. Wills' condition has improved, and he no longer suffers from the contact granuloma. Speech therapy treats abnormalities of speech production, language formulation and processing, such as articulation disorders, stuttering, language delay, and disorders of neuromuscular control. It is not the same as voice therapy. Five claims for health services were submitted on behalf of Mr. Wills by Donna S. Lundy, under procedure code 92507. Code 92507 on the approved fee schedule covers "Speech, Language or Hearing Therapy, with Continuing Medical Supervision, Individual." Dr. Goodwin, also submitted one claim under procedure code 92507 for services provided to Mr. Wills on August 14, 1990. All such claims were rejected by the Department. The State of Florida, Employees' Group Health Self Insurance Plan benefit document contains exclusions. The applicable exclusion, according to the Department, is Section VII(Q): VII. Exclusions The following exclusions shall apply under the plan: * * * * Q. Occupational, recreational, edu-cational, or speech therapy, orthoptics, biofeedback, contra-ceptives, telephone consultation, cardiac rehabilitation exercise programs, or visits for the purpose of exercise by bicycle, ergometer or treadmill. Benefit Document, page 46. There is no further explanation of the term "speech therapy" found in exclusion VII(Q) in any other portion of the Benefit Document. The approved fee schedule for the Group Health Self-Insurance Plan has a procedure code for "speech, language or hearing therapy, with continuing medical supervision, individual." That the approved fee schedule has such an entry at all is an indication that there are circumstances where speech language or hearing therapy is covered. Otherwise, the entry would be wholly inconsistent with the Department's position that Section VII(Q) flatly prohibits any payment for "speech therapy". Ms. Lundy is licensed speech-language pathologist in the State of Florida. Unless a person qualifies for licensure as a speech-language pathologist, a person may not describe him or herself using a number of terms. Among these forbidden terms are "speech pathologist", "speech therapist", "language pathologist", "voice therapist" and "voice pathologist". Section 468.1285(1)(b), Florida Statutes, (1990 Supp.). The Department relies upon the definition for the practice of speech-language pathology in the Professional Practice Act, Chapter 468, Part I, Florida Statutes (1990 Supp.), to argue that any services provided by a licensed speech-language pathologist must necessarily fall within the exclusion found in Section VII(Q) of the Benefit Document. The Department's argument that because the term "speech therapy" is not defined in the Benefit Document, it should determine the meaning of the term by looking to see how the term "speech-language pathology" is defined in Section 468.1125(7)(a), Florida Statutes (1990 Supp.), the professional practice act for speech-language pathology, is unpersuasive. There was no testimony that the Benefit Document was written with all definitions found in various professional practice acts in mind. There is certainly no proof that the Legislature crafted the miscellaneous professional practice acts in Chapter 468 with an eye towards using the definitions in those acts for determinations under the Employees' Group Health Self Insurance Plan. The Benefit Document and the professional practice acts have little or nothing to do with each other, and neither shed light upon terms used in the other.
Recommendation It is recommended that the Secretary of the Department of Administration enter a Final Order requiring the Division of Employees' State Insurance to pay all claims submitted by Donna S. Lundy and the claim of Dr. Goodwin which have been denied. The Benefit Document does not clearly exclude voice therapy for a contact granuloma, and in the absence of a clear exclusion, the law requires that those claims be paid. RECOMMENDED this 24th day of December, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5324 Rulings on findings proposed by the Department: Adopted in Finding 1. Adopted in Findings 2 and 3. Rejected as unnecessary. Adopted in Finding 3. Adopted in Finding 4. Discussed in Finding 5. Rejected as unnecessary. See, Conclusions of Law. Adopted in Finding 9. Adopted in Finding 10. Rejected. See, Conclusions of Law. Adopted in Finding 5. Rulings on findings proposed by Mr. Wills, treated as if the paragraphs had been numbered: Adopted in Finding 3. Adopted in Findings 3 and 4. Adopted in Finding 5. Adopted in Finding 7. Generally adopted in Finding 9. Generally adopted in Finding 5. Adopted in Findings 5 and 9. COPIES FURNISHED: Steven Michaelson, Esquire 9326 Northwest 18th Drive Plantation, FL 33322 John M. Carlson, Esquire Department of Administration 438 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
