The Issue Whether the Petitioner is required to reimburse the Respondent for prescription drugs acquired by the Petitioner through the Prescription Drug Program of the State of Florida Employees Group Health Self Insurance Plan?
Findings Of Fact The Petitioner was an employee of the State of Florida during the latter part of 1985 and during 1986. His employment with the State began January 27, 1984. Prior to December 1, 1985, the Petitioner participated in the State of Florida Employees Group Health Self Insurance Plan (hereinafter referred to as the "State Plan"). On October 31, 1985, the Petitioner signed a Change of Information form electing to terminate his participation in the State Plan and to begin participation in a Health Maintenance Organization (hereinafter referred to as an "HMO"). The HMO the Petitioner selected was the Capital Health Plan. The title of the form the Petitioner signed on October 31, 1985, contained the following: STATE OF FLORIDA EMPLOYEES GROUP HEALTH SELF INSURANCE PLAN CHANGE OF INFORMATION FOR USE ONLY BY A CURRENT EMPLOYEE OF THIS PLAN [Emphasis added]. Above the Petitioner's signature was the following "employee authorization": I hereby request the above changes in my coverage and/or insurance information in the State of Florida Employees Group Health Self Insurance Plan....[Emphasis added] Prior to terminating his coverage under the State Plan, the Petitioner was given a brochure titled "A Comparison of Health Benefit Plans Offered to Employees of the State of Florida" (hereinafter referred to as the "Comparison Brochure"). The brochure was for employees working in North Florida. The Comparison Brochure indicates there are two general types of health insurance plans available to state employees: HMO Benefit Plans and the State Plan. The Comparison Brochure also indicates there are four HMO Benefit Plans available. Capital Health Plan, the plan the Petitioner elected on October 31, 1985, is one of the clearly designated HMO Benefit Plans listed in the Comparison Brochure. The Comparison Brochure provides the following with regard to prescription drugs for Capital Health Plan participants: "$3.00 co-payment at CHP pharmacy." The Comparison Brochure provides the following with regard to prescription drugs for State Plan participants: "PPC provider not available at this time" if a preferred provider is used and "20 percent co-payment (7)" when a non-preferred provider is used. The reference to "(7)" is a footnote which provides: "Prescription Drug Plan will be implemented by 1-1-86, paying 100 percent after nominal dispensing fee." The Comparison Brochure contains the following other pertinent information: Along with the conventional group health self insurance plan administered by Blue Cross/Blue Shield, the State of Florida offers its employees the opportunity to enroll in a different health care arrangement. This arrangement, called a Health Maintenance Organization (HMO), is available to eligible employees who live within a specific geographic area surrounding the HMO. The Comparison Brochure contains other information that indicates that the State Plan and the Capital Health Plan HMO are completely different types or methods of obtaining health insurance coverage available to state employees. Based upon the information contained in the Comparison Brochure, which the Petitioner indicated he read, the Petitioner should have known that he was entitled to health insurance benefits under the Capital Health Plan HMO as of December 1, 1985, and that he was not entitled to any health insurance benefits under the State Plan. Sometime after December 20, 1985, the Petitioner received a letter from the Department of Administration which provided in pertinent part: Dear Participant: We are pleased to announce the new Prescription Drug Program. Effective January 1, 1986, coverage for prescription drugs under the State Employees Group Health Self Insurance Plan is provided through a prescription drug program serviced by Paid Prescriptions and National Rx Services, Inc. This program is specifically designed to save you money when you use a Preferred Provider Organization (PPO) Pharmacy and Mail Service for your prescription drugs. [Emphasis added]. Included with the letter of December 20, 1985, was a "PLASTIC CARD to use at PPO and participating pharmacies" and a "brochure which gives you instruction on using the Program and a detachable patient profile for Mail Service." The prescription drug card the Petitioner received had "State of Florida Employees Group Health Self insurance Plan" printed on it. It did not contain any reference to Capital Health Plan or any other HMO. The brochure included with the letter of December 20, 1985, which the Petitioner received had "State of Florida Employees Group Health Self insurance Plan" printed at the top of the front cover of the brochure and elsewhere in the brochure. It did not contain any reference to Capital Health Plan or any other HMO. The brochure included with the letter of December 20, 1985, provided the following pertinent information: Coverage for prescription drugs under the State Employees' Group Health Self Insurance Plan is provided through the Prescription Drug Program.... A toll-free telephone number was provided on the prescription drug card and the brochure which the Petitioner was instructed could be used if he had any questions. The prescription drug card sent to the Petitioner was sent to all state employees participating in the "State Employees Group Health Self Insurance Plan." It was not for use by state employees participating in the Capital Health Plan or other HMO's. The card was erroneously sent to the Petitioner by the Respondent. Because the Petitioner had terminated his coverage under the State Plan and elected to participate in an HMO effective December 1, 1985, he was not entitled to use the prescription drug card which he received from the Respondent. In order for the Respondent to have the prescription drug cards ready to be mailed to participants in the State Plan before January 1, 1986, the Respondent used information concerning participants prior to December 1, 1985. Evidently no effort was made by the Respondent to insure that participants who left the State Plan during the end of 1985 did not receive a prescription drug card. The Respondent did send a memorandum dated December 20, 1985, to Personnel Officers and Insurance Coordinators requesting that they attempt to retrieve prescription drug cards from employees who terminated their participation in the State Plan after November 1, 1985. No one retrieved the Petitioner's card. After receiving his card, the Petitioner spoke to the business manager of the County Public Health Unit where the Petitioner worked for the Department of Health and Rehabilitative Services. The Petitioner asked the business manager whether he could use the card and was told that he did not know but would find out. The business manager later told the Petitioner that he had talked to the district personnel office and been told that the Petitioner could use the card. On February 26, 1986, and February 27, 1986, the Petitioner used the prescription drug card to purchase prescription drugs in south Florida. The Petitioner talked with a physician at Capital Health Plan by telephone before purchasing the medications and was authorized to receive treatment by other than a Capital Health Plan physician. The State was billed $5.82 for the medications purchased with the card on February 21, 1986 and February 26, 1986. On March 1, 1986, the Petitioner again used the card to purchase medications. The card was used in Tallahassee, Florida. The State was billed $63.95 ($55.43 and $8.52) for the medications purchased with the card on March 1, 1986. The Petitioner did not use the card on any other occasion. The Petitioner testified that he did not use the card because he discovered that it was less costly to acquire the medications he needed from Capital Health Plan. Based upon the evidence presented at the hearing, however, the cost to the Petitioner was the same whether he used the plastic card or Capital Health Plan's pharmacy: $3.00. On or about March 27, 1986 and April 10, 1986, the Petitioner was informed that he had used the card to obtain medications for which use of the card was not authorized. The Petitioner was requested to return the card and to repay the amount incurred for the medications. The Petitioner did not respond to these requests. On August 26, 1986, the Petitioner was sent a letter requesting that he repay the cost of the medications he had acquired with the card. Although the Petitioner was requested to remit $77.02, the evidence only proved that $69.77 of medication was paid for by the State. On August 28, 1986, the Petitioner returned the prescription drug card he had been given to Andrew Lewis, an employee of the Respondent. The Petitioner has not reimbursed the State for the cost of the medication he received. The $69.77 of medications paid for by the Respondent which the Petitioner acquired with the prescription drug card provided to him by the Respondent represents a payment on behalf of the Petitioner which he was not entitled to. The card was for use by state employees participating in the State Plan. As of December 1, 1985, the Petitioner was not a participant in this plan. When considered together, the information provided to the Petitioner should have put the Petitioner on notice as to the type of medical insurance coverage he was generally entitled to receive. In particular, the Petitioner should have known that he was eligible for coverage under the Capital Health Plan, an HMO, and that he was not entitled to coverage under the State Plan as of December 1, 1985. The Petitioner also should have known that the prescription drug card he received was for use of participants by the State Plan only and not participants of the Capital Health Plan. The Petitioner's reliance on the statements of the business manager of the County Public Health Unit where he worked was not reasonable in light of the other information which he had been provided about his coverage and the purpose of the prescription drug card he was sent. The Petitioner is not able to repay the $69.77 owed to the State in a lump sum. The Petitioner can only pay the $69.77 to the Respondent in monthly installments of $10.00 or less.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Petitioner pay $69.77 to the Respondent for prescription drugs received by the Petitioner. DONE AND RECOMMENDED this 26th day of February, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4111 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." The Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1 Although the Petitioner did not inten- ionally use the prescription card despite being informed that he was not entitled to it, he should have known that he was not entitled to use it. 2 RO 31. 3 RO 21. 4 Not supported by the weight of the evidence. In light of the information provided to the Petitioner concerning the differences between the State Plan and an HMO, the Petitioner did not use due care to determine if the card was a part of the benefits he was entitled to receive as a participant in an HMO. 5 RO 25. 6 Not supported by the weight of the evidence. Ms. Walker testified that the coverage available to state employees is not confusing. The Respondent's Proposed Findings of Fact: 1. RO 1. 2. RO 2. 3. RO 3-4 and 13-14. 4. RO 15, 18, 21 and 24. 5. RO 21 and 26. 6. RO 27. 7. RO 10. 8. RO 29. 9. RO 30. 10. RO 31. 11. COPIES FURNISHED: RO 36. Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1500 S. Philip Ford Post Office Box 20232 Tallahassee, Florida 32316
Findings Of Fact Background. Petitioner, George T. Lloyd, Jr., has been employed by the State of Florida, Department of Revenue, for over 14 years, and was, at all times material hereto, a participant in the State of Florida Employees Group Health Self Insurance Plan (Plan), with family coverage. On March 25, 1986, petitioner's son, George T. Lloyd, III (George), then 17 years of age and an eligible dependent under the Plan, was admitted through the emergency room to Broward General Medical Center (Hospital), Fort Lauderdale, Florida. George was placed in the Hospital's Intensive Care Unit, and remained there until his recovery and transfer to the Hospital's psychiatric floor on April 4, 1986. Upon admission, George was comatose and diagnosed as having suffered a severe barbiturate drug overdose. Blood tests performed at the time demonstrated a serum barbiturate level of 145.6 UG (milligrams per milliliter) and a serum Dilantin level of 23.3 UG. At such levels, or even one-half such levels, George would have died of respiratory depression absent medical intervention. On or about August 9, 1986, Blue Cross and Blue Shield of Florida, Inc., the State's administrator of the Plan, notified petitioner that the Hospital's statement for services and supplies rendered during the course of his son's admission of March 25, 1986 to April 4, 1986, totalling $17,402.95, was ineligible for payment based upon the Plan's exclusion of benefits for intentional self-inflicted injuries, to wit: attempted suicide. Pertinent to this case, the Plan provides: VII. EXCLUSIONS The following exclusions shall apply under the Plan: * * * E. Any services and supplies received due to the following circumstances: * * * 2. Resulting from an intentional self- inflicted injury. Over the course of the next two years petitioner's claim for such expenses was reevaluated by the Plan administrator, as well as respondent, Department of Administration (Department). At the conclusion of that review, the Plan administrator concluded that the documentation available to it demonstrated that such expenses were incurred as a consequence of George's attempt to take his own life and were therefore excluded from coverage. By letter of August 19, 1988, the Department notified petitioner that his claim for benefits arising from his son's hospital admission of March 25, 1986 to April 4, 1986, was denied because such expenses resulted from his son's attempt at suicide. Petitioner filed a timely protest of the Department's decision, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. An Intentional Self-Inflicted Injury? Petitioner's son has a history of alcohol and drug (marijuana and cocaine) abuse and emotional problems accompanied by periods of depression that predate the incident in question by a number of years. His mother and father (petitioner) were divorced in 1971 when George was approximately three years of age. Thereafter, George resided in Florida with his mother until his fifth birthday, at which time he was sent out-of-state to reside with his father. George resided with his father until he was eleven years old, and then returned to live with his mother in Florida. In the summer of 1984, George was abusing alcohol and drugs, and experiencing difficulties in school. At that time, his mother again sent George to live with his father in the apparent hope that he could assist George in addressing these problems. The petitioner secured group counseling for George in an attempt to assist him. George continued, however, to use alcohol and drugs, and within four months, dropped out of school and ran away. Approximately four or five months later, George reappeared and returned to Fort Lauderdale to live with his mother and stepfather. Following his return, George did little of a constructive nature, and what jobs he was able to secure as a tenth grade dropout were menial in nature and of a minimal wage. Variously he worked as a bag boy, mowed lawns, and washed cars. On March 25, 1986, George was unemployed, and had just concluded an argument with his stepfather concerning his unemployment and failure to follow any constructive pursuit. Depressed at his circumstances, George ingested phenobarbital and Dilantin, drugs that had been prescribed for his stepfather, with the intention of taking his own life. But for the medical intervention previously discussed, George's attempt would have proven successful. At the time he ingested the drugs, George was not under the influence of alcohol or any other drug, and was of sufficient age and maturity to appreciate the consequences of his actions. Both the nature of the drugs he took and the vast quantity he ingested indicate an intentional attempt to take his own life rather than an accidental overdose during "recreational" use. Here, the drugs he took were not "recreational" drugs, they produce no "high," and the dosage, as heretofore noted, was massive. Considering these factors, George's admission that he attempted suicide, and the totality of the circumstances, compels the conclusion that he did consciously attempt to take his own life, and that what depression he suffered did not deprive him of the ability to appreciate the consequences of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing, with prejudice, the petition for administrative review. DONE and ENTERED this 16th day of May 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 16th day of May, 1989.
The Issue At issue in this proceeding is whether the son of Floyd Goins, an enrollee of the State of Florida Employees Group Health Self Insurance Plan, is an eligible dependent under the provisions of such plan, and therefore eligible for insurance benefits.
Findings Of Fact Background Floyd Goins (the "Insured") has been employed by the State of Florida, Dade County State Attorney's Office, for approximately 11 years, and was, at all times material hereto, a participant in the State of Florida Employees' Group Health Self Insurance Plan (the "Plan"), with family coverage. On January 17, 1988, the Insured's son, Ronald Goins (Ronald), date of birth March 7, 1965, was involved in an automobile accident in which he sustained serious injury. As a consequence, Ronald was admitted to Jackson Memorial Hospital, where he apparently underwent extensive treatment. As a result of the accident, Ronald suffered severe physical handicap, in that he cannot walk or talk, and is not capable of self sustaining employment. Currently, Ronald resides with his parents, and is wholly dependent upon them for support. As a consequence of the medical expenses incurred on behalf of Ronald, a request for reimbursement was made to respondent, Department of Administration, Division of State Employees' Insurance (Department), under the Plan. Upon review, the Department, relying upon the provisions of Rule 22K- 1.103, Florida Administrative Code, concluded that Ronald, since he was over the age of 19 at the time of the accident and was not enrolled in and attending a school, college or university as a full-time student at the time of the accident, was ineligible for coverage as a dependent under the Plan. Accordingly, the Department denied the request for reimbursement. Thereafter, the Insured assigned to petitioner, The Public Health Trust of Dade County, Florida d/b/a Jackson Memorial Hospital, his interest in any benefits payable for services rendered by such facility as a consequence of Ronald's admission, and further authorized Jackson Memorial to take whatever legal action might be necessary to collect such benefits. As a consequence, petitioner filed a request for formal hearing to contest the Department's conclusion that Ronald was ineligible for coverage under the Plan. 1/ The issue of coverage. Under the provisions of the Plan, an employee's "eligible children" are included within the definition of "eligible dependents" who are eligible to participate in the Plan, provided family coverage has been selected. Rules 22K- 1.103(5) and 22K-1.201(2), Florida Administrative Code. "Eligible children" are defined by Rule 22K-1.103(4), Florida Administrative Code, as follows: "Eligible children" shall mean the employee's . . . own children . . . Such children are eligible for coverage as follows: From their date of birth to the end of the month in which their nineteenth (19th) birthday occurs; From their nineteenth (19th) birthday to the end of the month in which their twenty-third (23rd) birthday occurs, if they are enrolled in and regularly attending on a full-time basis any school, college or university which provides training or educational activities, and which is certified or licensed by a state or foreign country. Such children who are mentally or physically handicapped shall be eligible to continue coverage after attainment of the above age limits and while the employee's or retiree's family coverage is in effect provided such children are incapable of self- sustaining employment by reason of such mental or physical handicap and chiefly dependent upon the employee, retiree or supervising spouse for support and maintenance. (Emphasis added) And, Rule 22K-1.103(9), Florida Administrative Code, defines "full-time basis", as follows: (9) "Full-time basis" shall mean the number of hours required by the school, college or university to qualify an eligible child as a full-time student. In no case shall an eligible child be considered attending on a full-time basis unless such child is currently enrolled and attending, or has, during the previous twelve (12) month period, attended as a full-time student, two (2) semesters, three (3) quarters or eight (8) months at such school, college or university. (Emphasis added) Here, petitioner contends that Ronald was an eligible dependent of the Insured, and therefore covered by the Plan because he was "enrolled in and regularly attending on a full-time basis" Bauder College, an institution licensed by the State of Florida, at the time of his accident or, alternatively, because such accident rendered him "physically handicapped." The proof fails, however, to support the conclusion that Ronald was an eligible dependent of the Insured, at the time of the accident, on either basis. Ronald's educational pursuits. Regarding Ronald's educational pursuits, the proof demonstrates that his public education was interrupted in or about 1984 when he was incarcerated in the State prison system, and that he remained so incarcerated until the later part of 1987. While incarcerated, Ronald apparently pursued some educational program, although no specifics were offered at hearing from which any conclusion could be drawn regarding its "full-time" nature, since the Department of Education awarded to him a high school diploma on December 12, 1984. Ronald apparently also pursued, while incarcerated, a course of study in electronic repair through Sumter Vocational School, during the period of November 1, 1985 to September 20, 1986. [Petitioner's Exhibit 1]. Again, no specifics were offered at hearing from which any conclusion could be drawn regarding the "full- time" nature of this program, but Ronald was awarded a certificate upon its completion. In sum, the proof fails to support the conclusion that Ronald, while incarcerated, was enrolled in and regularly attending any school on a "full-time basis", as that term is defined by Rule 22K-1.103(9), Florida Administrative Code. Moreover, there is no proof of record that Ronald pursued any educational program after September 20, 1986, a date in excess of 12 months prior to his automobile accident, excepting his enrollment at Bauder College. Regarding Ronald's enrollment at Bauder College, the proof demonstrates that on November 3, 1987, Ronald executed an enrollment agreement with Bauder College whereby he elected to pursue an educational program in electronic engineering technology. According to the enrollment agreement, the program was to start January 19, 1988, and the school calendar [Respondent's Exhibit 1] confirms that January 19, 1988, was "ORIENTATION/REGISTRATION - FIRST DAY" of the 1988 Winter Quarter. Ronald was, however, hospitalized on January 17, 1988 as a consequence of his automobile accident, and never started his course of training. 2/ Therefore, Ronald, although enrolled, was not yet "regularly attending" school when injured and, therefore, was not at the time of his accident an eligible dependent of the Insured. 3/ Ronald's handicapped status. Here, petitioner also contends that, as a consequence of his handicap, Ronald was an eligible dependent under the Plan. Such contention is rejected as contrary to the provisions of Rule 22K-1.103(4), Florida Administrative Code. Handicap, under the facts of this case, is not a factor which renders a person eligible for coverage. Rather, handicap is a factor which permits the child of the insured "to continue coverage" after attainment of the age limits for coverage. Rule 22K-1.103(4)c), Florida Administrative Code. Ronald, not having been a covered dependent at the time he suffered his handicap, had no coverage to continue. Estoppel Notwithstanding the rules which govern eligibility to participate in the Plan, petitioner contends that the Department should be estopped to apply such rules in the instant case. 4/ The predicate for petitioner's argument lies in a brochure [Petitioner's Exhibit 7] that was provided the Insured, and which defines eligible dependents as follows: Your own children . . . ; if they are under the age of 19, if they are full-time students under the age of 23, or if they are determined by the administrator to be mentally or physically handicapped, incapable of self- sustaining employment, chiefly dependent upon your support, and otherwise insurable. Petitioner's claim of estoppel is unpersuasive for a number of reasons. First, the brochure does not purport to replicate the Plan, but to summarize it, and advises all recipients that it "is not a contract since it does not include all of the provisions, definitions, benefits, exclusions and limitations" of the Plan. Under such circumstances, it would not be reasonable to rely solely on the brochure for any definition of coverage. Second, and perhaps most importantly, the proof is not persuasive that the Insured relied upon the referenced provision of the brochure or that he made any change in position as a consequence of such provision.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds that Ronald Goins is not covered by the Plan, and which dismisses the petition with prejudice. DONE and ENTERED this 6th day of December 1991, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 6th day of December 1991.
Findings Of Fact In December of 1985, the Petitioner and his dependents were covered by the State Employees Group Health Self Insurance Plan. Robert S. Coughlin, the Petitioner's nineteen-year-old dependent, was hospitalized in an out-of-state hospital from December 24, 1985, to December 26, 1985. The total expense for the hospitalization was $935.00. A claim for insurance benefits to cover the expense was received by the Insurance Plan administrator on August 10, 1987. The claim was filed by the hospital on behalf of the insured dependent, Robert S. Coughlin. The administrator for the Respondent refused to pay the claim as it was not submitted within the sixteen-month period set forth in the contract of insurance. The contract, which is referred to as the benefit document, contains a policy exclusion which provides that no payment shall be made under the Plan for claims made after the expiration of the sixteen-month time limit which begins to run from the date medical expenses are incurred. The hospital did not timely file the claim because a mix-up had occurred during the hospital admission concerning the patient's insurance coverage. The dependent, Robert S. Coughlin, was unconscious during his emergency out-of-state hospital admission. Either the hospital personnel or the dependent's friends mistakenly used the information on another insurance card located in the patient's wallet as the applicable insurance. As the hospital directly filed the claim with the first insurance company, processing delays within the first company caused the hospital to miss the filing deadline for the actual insurance benefits. The Petitioner, Charles R. Coughlin, was not made aware of the situation until after the sixteen-month dime period had expired, and the claim for payment had been refused by the Respondent.
The Issue Whether Petitioner is entitled to change from individual to family coverage under the State of Florida Employees' Group Insurance Plan retroactively to May 1, 1990.
Findings Of Fact The State of Florida makes available to its employees several group insurance programs. In the area of health insurance, employees may choose to participate in the State of Florida Employees Group Health Self Insurance Plan, or they may enroll in a number of different HMOs depending upon the county in which each employee resides. The State of Florida Employees Group Health Self Insurance Plan (hereinafter "the Plan") is a plan of self insurance established by the State, specifically described in a Benefit Document, and administered, under contract, by Blue Cross/Blue Shield (BCBS). In addition to the provisions of the Plan embodied in the Benefit Document, the self insurance plan is regulated by those rules contained in Chapter 22D, Florida Administrative Code. If an employee voluntarily chooses to participate in the Plan, the State as the employer contributes to the employee's costs by paying a portion of the premium for each employee. At the time that they commence employment with the State, employees may elect to participate in the Plan, in one of the HMOs approved for that particular geographical location, or may choose to not participate in any of the voluntary insurance programs offered through the State. Thereafter, employees may only join one of the insurance programs or switch between programs during an annual open enrollment period, unless an exception applies. An employee may purchase individual coverage, insuring only herself, or an employee may purchase family coverage, insuring that employee and one or more of her eligible dependents. During an open enrollment period, an employee may switch between individual coverage and family coverage for the following year. Under the State Plan, there is an exception to the restriction that employees may only change coverage and health plans during the open enrollment period. An employee having individual coverage may change to family coverage within 31 days after the date of acquisition of any eligible dependent. In that event, coverage for the eligible dependent does not relate back to the date of acquisition but rather will commence on some future date following the payment of the additional premium required for the additional family coverage. Similarly, an employee with only individual coverage may begin family coverage prior to acquiring eligible dependents and may obtain coverage for those dependents effective on the actual date the dependent is acquired by making application in time for a complete month's premium to be deducted prior to the first day of the month during which the dependent(s) will be acquired. At the time a new employee is hired and during open enrollment periods, all employees are given brochures with summary information regarding the various programs in which they are being given an opportunity to participate. Employees are advised, if they have questions regarding the Plan, to contact their personnel officer or the Division of State Employees' Insurance. After the employee makes a selection as to which health plan she wishes to participate in, if any, the employee will subsequently receive more detailed information about that plan. An employee choosing to participate in the Plan will subsequently receive a copy of the State of Florida Employees Group Health Self Insurance Plan Brochure. The first page of the Brochure specifically advises the employee that the brochure does not include all of the provisions, definitions, benefits, exclusions, and limitations of the Plan. The Brochure specifically advises the employee that it is a summary of the benefits and that any questions the employee might have should be presented to the employee's agency personnel offices or the Office of State Employees' Insurance, and provides that office's address and telephone numbers. The Plan itself is not distributed to each individual employee but rather is made available to each agency's personnel office for reference by any interested employee. Under the Plan, a woman with individual coverage is entitled to maternity or pregnancy benefits. As part of those benefits, charges for "well baby care," i.e., the charges for the nursery for the baby, are covered under the Plan as part of the maternity benefit of the mother. In well baby care, charges are not incurred by the baby as a separate patient. On the other hand, if a baby is ill and is admitted to the hospital as a separate patient, well baby care coverage does not apply, and family coverage must be in effect or the infant will be an uninsured individual under the Plan. The University of South Florida (USF) central personnel office is located on its main campus. The Health Sciences Center also maintains an adjunct personnel office for the convenience of employees of the Health Sciences Center at the adjunct personnel office where employees are able to gain assistance on personnel matters and obtain insurance benefit information. However, the employees' actual personnel files are located at the main campus personnel office. Robin Hudson is employed by the University of South Florida in the Health Sciences Center adjunct personnel office as a senior clerk. As part of her duties, Ms. Hudson counsels USF employees on their insurance benefits. Petitioner was employed by the University of South Florida Health Sciences Center on February 19, 1988, and chose to enroll in the State Employees' Group Health Program with family coverage effective March 1, 1988. Subsequently, Petitioner changed from family coverage to individual coverage effective July 1, 1988. Petitioner became pregnant in November 1988, with a due date of August 18, 1989, while she maintained individual coverage with the Plan. Sometime during November 1988, Petitioner telephoned the Health Science Center personnel office and spoke with "someone" regarding maternity coverage. Petitioner was advised that she was covered under the Plan. Also during this same time period, Petitioner referred to the Group Health Self Insurance Plan Brochure and could find no explanation of maternity or new born coverage. She did not seek additional information from the personnel office, nor did she contact the Division of State Employees' Insurance, at that time. The first communication involving Petitioner on the correspondence log maintained by Blue Cross and Blue Shield occurred on January 21, 1989, in a letter that was written to: Santiago and Arocho, M.D., P.A., Family Practice Physicians of Tampa, 5208 D. Fowler Avenue, #1, Tampa, Florida 33617-2152. The second correspondence occurred on May 9, 1989. It as an interpretation on lab work which had been performed on Petitioner. The third correspondence occurred on the same date when Blue Cross and Blue Shield advised provider 77566 was a preferred provided under Preferred Patient Care (PPC). On June 14, 1989, Petitioner enrolled with Tampa General Hospital. Petitioner was advised by hospital personnel that she had well and sick baby coverage at that time. This information was wrong. Sick baby coverage is not included for an employee with individual coverage. Petitioner delivered her daughter Lia at 32 weeks gestation by Cesarean Section on June 20, 1989, at Tampa General Hospital because her pregnancy was complicated by Severe Pre-Eclampsia with HELLP Syndrome. On the date Petitioner delivered her daughter, June 20, 1989, her husband called Blue Cross and Blue Shield of Florida inquiring if pre-admission certification was required for maternity. He was informed that it was not required for maternity. Due to the premature delivery, the child, Lia, was admitted as a patient and remained in the hospital for two weeks in order to gain weight. On February 17, 1989, Respondent's January 30, 1989 Insurance Memorandum 89-001 was received at USF Central Personnel Office. In Respondent's Memorandum 89-001, the Respondent reiterates the provisions of Rule 22K- 1.203(3), Florida Administrative Code, and advises personnel offices to advise "an insured pregnant employee . . . that she should change to family coverage shortly after the pregnancy is diagnosed so that insurance benefits will be available to the employee's child in the event of premature birth." The Personnel Office at USF printed the pertinent portions of Respondent's Memorandum 89-001 and distributed to each employee by placing an individually addressed copy of the Personnel Notes in each employee's mail box. Petitioner doesn't recall receiving the March 24 - April 3, 1989, edition of the news brochure; however, Petitioner asserts that she wouldn't have read it even if it was delivered, because the pertinent information was under the heading "Change in Appointment Status." The entire subject of the article under the heading Change in Appointment Status dealt with insurance benefits offered by Respondent and included a telephone extension number for interested employees to obtain additional information. Petitioner did not request any information of the maternity benefits offered to employees with single coverage from her personnel office or Respondent until after the birth of her daughter. Petitioner changed from single to family coverage, effective August 1, 1989, after consulting with Robin Hudson on July 21, 1989. The Plan has refused coverage for the hospitalization of Petitioner's child, Lia, the expenses of which totaled $9,178.95.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition which seeks payment for medical expenses incurred by Petitioner's newborn baby be DENIED. DONE AND ENTERED this 17th day of December, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5513 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Petitioner did not submit proposed findings Respondent's Proposed Findings of Fact Accepted: paragraphs 1, 2, 3, 4, 5 (in part), 6, 7 (in substance), 8, 9, 10, 11. Rejected, as against the greater weight of evidence: paragraph 5 (in part). Rejected, as a conclusion of law: paragraph 12. COPIES FURNISHED: Marcela Gutierrez-Mayka 701 East River Drive Temple Terrace, FL 33617 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
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 The issues in this case are whether Respondent, Leonard Louis Zanello, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services on October 16, 2008, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. Respondent Leonard Louis Zanello is currently and was at the times relevant, licensed in Florida as a health agent (02-40), and a life and health agent (02-18). Mr. Zanello’s license number is A293282. Count I: Failure to Submit Florida Office of Financial Regulation Order to the Department. On June 12, 2003, the Florida Office of Financial Regulation (hereinafter referred to as the “OFR”), f/k/a the Florida Office of Financial Institutions and Securities Regulation, entered a Final Order against Mr. Zanello in a case styled In Re Leonard Zanello, Administrative Proceeding No. 0663-I-3/02 (the OFR Order). The OFR Order related to alleged violations by Mr. Zanello of Florida securities laws. No copy of the OFR Order was submitted to the Department by Mr. Zanello within 30 days after it was entered as required by Section 626.536, Florida Statutes. Nor has a copy of the OFR Order ever been submitted by Mr. Zanello to the Department. Mr. Zanello’s claim that he provided a copy of the OFR Order to Carl Morstadt, Esquire, an attorney at the time with the OFR, was unconvincing and has not been credited. Some of the reasons for rejecting Mr. Zanello’s testimony on this issue have been more fully described in paragraphs 8(2) through (4) of the Department’s Proposed Recommended Order. Those proposed findings are incorporated into this Recommended Order by this reference. Count II: Failure to Submit Securities and Exchange Commission Order to the Department. On January 7, 2004, the United States Securities and Exchange Commission (hereinafter referred to as the “SEC”), entered an Order against Mr. Zanello in a case styled In the Matter of Louis L. Zanello, Sr., Admin. Proceeding File No. 3- 11370 (hereinafter referred to as the “SEC Order”). The SEC Order involves violations by Mr. Zanello of Federal securities laws. As admitted by Mr. Zanello, no copy of the SEC Order was submitted to the Department by him within 30 days after it was entered as required by Section 626.536, Florida Statutes. Nor has a copy of the SEC Order ever been submitted by Mr. Zanello to the Department. Mr. Zanello’s claim that he was unaware of the SEC Order was unconvincing and has not been credited. Some of the reasons for rejecting Mr. Zanello’s testimony on this issue have been more fully described in paragraph 15 of the Department’s Proposed Recommended Order. Those proposed findings are incorporated into this Recommended Order by this reference. Count III: Misstatement in the Sale of an Insurance Policy and Twisting. On January 3, 2004, Mr. Zanello met with Ms. Anne Paul of Coconut Creek, Florida. Ms. Paul was 80 years of age at the time she met with Mr. Zanello. At the January 3, 2004, meeting with Ms. Paul, Mr. Zanello sold her a long-term care insurance policy with AF&L Insurance Company (hereinafter referred to as “AF&L”). When she purchased the AF&L insurance policy (hereinafter referred to as the “AF&L Policy”), Ms. Paul already had a long-term care insurance policy. That policy was with Kanawha Insurance Company (hereinafter referred to as “Kanawha”)(the long-term care insurance policy from Kanawha will hereinafter be referred to as the “Kanawha Policy”). Shortly after her meeting with Mr. Zanello, Ms. Paul informed Rita Baskin, whom Ms. Paul then regarded as her “financial advisor,” of her purchase of the AF&L Policy. Ms. Baskin convinced Ms. Paul that the AF&L Policy was not as beneficial as her Kanawha Policy and that she should immediately cancel the AF&L Policy. Why Ms. Baskin, who is now deceased, told Ms. Paul that the Kanawha Policy was a better product and, more importantly, why Ms. Paul believed that the Kanawha Policy was a better long-term care insurance policy than the AF&L Policy were not proven at hearing. Regardless of the specific reasons why, in reliance on Ms. Baskin’s advice, Ms. Paul cancelled the AF&L Policy. Ms. Paul testified by telephone during the hearing of this matter. Ms. Paul testified that she had informed Mr. Zanello about her Kanawha Policy at the time she purchased the AF&L Policy. She also testified that she agreed to purchase the AF&L Policy in complete reliance upon Mr. Zanello’s representation to her that the AF&L Policy was a better product than the Kanawha Policy. Ms. Paul’s testimony came more than five years after she had purchased the AF&L Policy (she was more than 85 years of age at the time of the hearing), and she had suffered a broken wrist the Friday before the hearing. Her arm was in a cast, she was taking no pain medication, and she indicated that she was in distress from pain during her testimony. In light of these facts and others, Ms. Paul’s testimony concerning what she told Mr. Zanello and her reliance upon representations from him concerning which policy was better was not clear and convincing. Ms. Paul’s testimony in this regard has, therefore, been rejected. Based upon the totality of the evidence in this case, the evidence simply failed to prove clearly and convincingly what transpired on January 3, 2004, when Mr. Zanello sold Ms. Paul the AF&L Policy, other than the fact that Ms. Paul purchased the AF&L Policy. D. Count IV: Misstatement on Insurance Application. Question 2 of Part IV of the AF&L Policy application signed by Ms. Paul, asks the following: Do you now or within the last 12 months had [sic] another Long-term Care, Nursing Home, or Home Health Care Insurance policy in force (including health care service or health maintenance organization contracts)? Question 3 of Part IV of the AF&L Policy application asks the following: Will this policy replace any of your medical, health or long-term care insurance? Mr. Zanello completed Part IV of the application for the AF&L Policy, asking Ms. Paul the questions and recording her answers. The answer to Questions 2 and 3 of Part IV of the application recorded by Mr. Zanello is “No.” Because the evidence failed to prove clearly and convincingly that Ms. Paul informed Mr. Zanello of the Kanawha Policy, the evidence failed to prove that incorrect answers to Questions 2 and 3 of Part IV of the application for the AF&L Policy were knowingly filled in by Mr. Zanello. If Mr. Zanello had been aware that Ms. Paul was replacing her Kanawha Policy with the AF&L Policy, which the evidence failed to prove, he was required to provide her with a “Notice to Applicant Regarding Replacement.” See Fla. Admin. Code R. 69O-157.016(2). While Ms. Paul was not provided a copy of a Notice to Applicant Regarding Replacement by Mr. Zanello, the evidence failed to prove that Mr. Zanello knowingly failed to provide the Notice to her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Leonard Louis Zanello violated the provisions of Chapter 626, Florida Statutes, as alleged in Counts I and II of the Administrative Complaint and described, supra; dismissing Counts III and IV of the Administrative Complaint; and suspending his licenses for a period of six months. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 1st day of December, 2009. COPIES FURNISHED: Robert Alan Fox, Senior Attorney Division of Legal Services Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Leonard Louis Zanello, Sr. 1074 Northwest 121st Lane Coral Springs, Florida 33071-5005 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
