The Issue The issue for determination in this case is whether Respondent’s application of a fair rental value system of property cost reimbursement to Petitioner under the Florida Title XIX Long-Term Care Medicaid Reimbursement Plan is appropriate.
Findings Of Fact Petitioner, CONSULTING MANAGEMENT AND EDUCATION, INC., d/b/a GULF COAST NURSING AND REHABILITATION CENTER (CME), is the licensed operator of a 103-bed nursing home in Clearwater, Florida, which is presently known as GULF COAST NURSING AND REHABILITATION CENTER (GULF COAST). CME participates in the Florida Medicaid Program as an enrolled provider. Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida authorized to implement and administer the Florida Medicaid Program, and is the successor agency to the former Department of Health and Rehabilitative Services, pursuant to Chapter 93-129, Laws of Florida. Stipulated Facts Prior to 1993, the GULF COAST nursing home facility was known as COUNTRY PLACE OF CLEARWATER (COUNTRY PLACE), and was owned and operated by the Clearwater Limited Partnership, a limited partnership which is not related to CME. In 1993 CME agreed to purchase, and did in fact purchase, COUNTRY PLACE from the Clearwater Limited Partnership. Simultaneous with the purchase of COUNTRY PLACE, CME entered into a Sale/Leaseback Agreement with LTC Properties, Inc., a Maryland real estate investment trust which engages in the financing of nursing homes. The Purchase and Sale Agreement between Clearwater Limited Partnership and CME was contingent upon the Sale/Leaseback Agreement and the proposed Lease between CME and LTC Properties, Inc. On September 1, 1993, CME simultaneously as a part of the same transaction purchased COUNTRY PLACE, conveyed the facility to LTC Properties, Inc., and leased the facility back from LTC Properties, Inc. As required, CME had notified AHCA of the proposed transaction. AHCA determined that the transaction included a change of ownership and, by lease, a change of provider. CME complied with AHCA's requirements and became the licensed operator and Medicaid provider for COUNTRY PLACE. Thereafter, CME changed the name of the facility to GULF COAST. After CME acquired the facility and became the licensed operator and Medicaid provider, AHCA continued to reimburse CME the same per diem reimbursement which had been paid to the previous provider (plus certain inflation factors) until CME filed its initial cost report, as required for new rate setting. In the normal course of business, CME in 1995 filed its initial Medicaid cost report after an initial period of actual operation by CME. Upon review of the cost report, AHCA contended that the cost report was inaccurate and engaged in certain "cost settlement" adjustments. During this review, AHCA took the position that CME's property reimbursement should be based on FRVS methodologies rather than "cost" due to the lease. In November of 1995, CME received from AHCA various documents which recalculated all components of Petitioner's Medicaid reimbursement rates for all periods subsequent to CME's acquisition of the facility. In effect, AHCA placed CME on FRVS property reimbursement. The practical effect of AHCA's action was to reduce CME's property reimbursement both retroactively and prospectively. The retroactive application would result in a liability of CME to AHCA, due to a claimed overpayment by AHCA. The prospective application would (and has) resulted in a reduction of revenues. CME is substantially affected by AHCA's proposed action and by Sections I.B., III.G.2.d.(1), V.E.1.h., and V.E.4. of the Florida Medicaid Plan. Additional Findings of Fact The Florida Medicaid Plan establishes methodologies for reimbursement of a nursing home's operating costs and patient care costs, as well as property costs. The dispute in this matter relates only to reimbursement of property costs. CME as the operator of the GULF COAST nursing home facility is entitled to reimbursement of property costs in accordance with the Florida Medicaid Plan. CME as the operator of the GULF COAST facility entered into a Florida Medicaid Program Provider Agreement, agreeing to abide by the provisions of the Florida Medicaid Plan. The Sale/Leaseback Agreement entered into by CME and LTC Properties Inc. (LTC) specifically provides for a distinct sale of the nursing home facility to LTC. LTC holds record fee title to GULF COAST. LTC, a Maryland corporation, is not related to CME, a Colorado corporation. The Florida Medicaid Plan is intended to provide reimbursement for reasonable costs incurred by economically and efficiently operated facilities. The Florida Medicaid Plan pays a single per diem rate for all levels of nursing care. After a nursing home facility's first year of operation, a cost settling process is conducted with AHCA which results in a final cost report. The final cost report serves as a baseline for reimbursement over the following years. Subsequent to the first year of operation, a facility files its cost report annually. AHCA normally adjusts a facility's reimbursement rate twice a year based upon the factors provided for in the Florida Medicaid Plan. The rate-setting process takes a provider through Section II of the Plan relating to cost finding and audits resulting in cost adjustments. CME submitted the appropriate cost reports after its first year of operation of the GULF COAST facility. Section III of the Florida Medicaid Plan specifies the areas of allowable costs. Under the Allowable Costs Section III.G.2.d.(1) in the Florida Title XIX Plan, a facility with a lease executed on or after October 1, 1985, shall be reimbursed for lease costs and other property costs under the Fair Rental Value System (FRVS). AHCA has treated all leases the same under FRVS since that time. AHCA does not distinguish between types of leases under the FRVS method. The method for the FRVS calculation is provided in Section V.E.1.a-g of the Florida Medicaid Plan. A “hold harmless” exception to application of the FRVS method is provided for at Section V.E.1.h of the Florida Medicaid Plan, and Section V.E.4 of the Plan provides that new owners shall receive the prior owner’s cost-based method when the prior owner was not on FRVS under the hold harmless provision. As a lessee and not the holder of record fee title to the facility, neither of those provisions apply to CME. At the time CME acquired the facility, there was an indication that the Sale/Leaseback transaction with LTC was between related parties, so that until the 1995 cost settlement, CME was receiving the prior owner’s cost-based property method of reimbursement. When AHCA determined that the Sale/Leaseback transaction between CME and LTC was not between related parties, AHCA set CME’s property reimbursement component under FRVS as a lessee. Property reimbursement based on the FRVS methodology does not depend on actual period property costs. Under the FRVS methodology, all leases after October 1985 are treated the same. For purposes of reimbursement, AHCA does not recognize any distinction between various types of leases. For accounting reporting purposes, the Sale/Leaseback transaction between CME and LTD is treated as a capital lease, or “virtual purchase” of the facility. This accounting treatment, however, is limited to a reporting function, with the underlying theory being merely that of providing a financing mechanism. Record fee ownership remains with LTC. CME, as the lease holder, may not encumber title. The Florida Medicaid Plan does not distinguish between a sale/leaseback transaction and other types of lease arrangements. Sections IV.D., V.E.1.h., and V.E.4., the “hold harmless” and “change of ownership” provisions which allow a new owner to receive the prior owner’s method of reimbursement if FRVS would produce a loss for the new owner, are limited within the Plan’s organizational context, and within the context of the Plan, to owner/operators of facilities, and grandfathered lessee/operators. These provisions do not apply to leases executed after October 1, 1985. Capital leases are an accounting construct for reporting purposes, which is inapplicable when the Florida Medicaid Plan specifically addresses this issue. The Florida Medicaid Plan specifically addresses the treatment of leases entered into after October 1985 and provides that reimbursement will be made pursuant to the FRVS method.
The Issue The issues are whether Petitioner, Daniel O. Cobb, is entitled to payment of claims for surgery performed on Ms. Cobb, Susan Catherine Cobb, his spouse, on November 11, 1985, and whether Respondent, the State, is estopped from denying coverage. A prehearing stipulation was filed limiting the facts, issues, exhibits and witnesses. The stipulated facts were incorporated into the Recommended Order and are in the Final Order as well. Petitioner presented the testimony of himself and his spouse. Petitioner's exhibits 2 through 6 were accepted into evidence. Exhibits 3 and 4 constituted hearsay. The Department presented the testimony of Hazel Rosser and Joseph F. Wellman. Four exhibits by the Department were offered into evidence and were accepted. Neither party ordered a transcript. Only the Department filed a proposed recommended order and findings of fact. The Findings of Fact and the Conclusions of Law in the Recommended Order are hereby adopted, except in Findings of Fact Nos. 16, 17, and 18, Mrs. Scott is changed to Mrs. Cobb and in Findings of Fact No. 18, Mr. Scott is changed to Mr. Cobb.
Findings Of Fact Daniel O. Cobb was an employee of the Florida Department of Transportation during 1985. Mr. Cobb and his spouse, Susan Cobb, had family coverage under the State of Florida Employees Group Health Self Insurance Plan (hereinafter referred to as the "State Plan"), until November 1, 1985. The State Plan is administered by Blue Cross/Blue Shield. Pursuant to the agreement between the State of Florida and Blue Cross/Blue Shield benefits which are payable under the State Plan are governed by a "Benefit Document." Each year, State employees are given an opportunity change the form of health insurance coverage they wish to have. During this "open enrollment period" an employee covered by the State Plan can elect to participate in a Health Maintenance Organization and an employee covered by a Health Maintenance Organization can elect to participate in the State Plan. During 1985, there was an open enrollment period between September 9, 1985, and September 20, 1985. During the 1985 open enrollment period State employees, including Mr. Cobb, were provided a Notice to Employees in which they were advised to carefully review information contained in a Benefit Comparison Brochure, a Rate Comparison Chart and a Health Care Plan Selection Form. These documents were provided to all State employees. The Selection Form instructed employees to "Please read the employee notice about HMO service areas and effective date of coverage before completing this section." State employees were also advised that any change in coverage would be effective November 1, 1985. On September 19, 1985, Mr. Cobb signed a State of Florida Employes Group Health Self Insurance Plan, Change of Information Form. Pursuant to this Change of Information Form, Mr. Cobb elected to terminate his health insurance coverage with the State Plan. On the Change of Information Form it was indicated that Mr. Cobb's election to terminate his coverage under the State Plan was to be effective November 1, 1985. Therefore, Mr. Cobb was informed and should have known that he was no longer eligible for medical cost payment for himself or his family pursuant to the State Plan after October 31, 1985. Mr. Cobb also signed a Member Enrollment (Group) and Physician Selection Form on September 19, 1985. Pursuant to this Form, Mr. Cobb enrolled himself, his Spouse and their children, in Health Options, Inc., a health maintenance organization. Mr. Cobb's participation in Health Options, Inc., began November 1, 1985. On September 19, 1985, Mr. Cobb was provided a list of Health Options, Inc., approved physicians which were available for use by Mr. Cobb and his family. Mr. Cobb designated Gerald A. Giurato, M.D., as his primary care physician on the Physician Enrollment Form which he signed on September 19, 1985. On October 28, 1985, Mr. Cobb was mailed a copy of the Health Options Member Handbook which, among other things, describes the grievance procedure to be followed when medical expenses were not paid by Health Options Inc., and the manner in which physicians were to be used in order to be entitled to payment, of their charges. The Handbook informed Mr. Cobb that all care had to be arranged through a primary care physician and that only services provided or approved by the primary care physician were covered. The Handbook also indicated that treatment by physicians who were not approved by the primary care physician would be the responsibility of the patient. During 1985 Mrs. Cobb was under the care of Alexander Rosin, M.D. Dr. Rosin performed surgery for the removal of a cyst on Mrs. Cobb, on November 11, 1985. Dr. Rosin was not a physician approved by Health Options, Inc., or Mr. Cobb's primary care physician. Nor was the surgery approved. Claims attributable to the November 11, 1985, surgery were submitted to the State Plan. Claims, for the charges of Dr. Rosin, Scott Blonder, M.D., and a Pathologist were submitted. The expenses for the November 11, 1985, surgery were incurred after coverage of Mr. and Mrs. Cobb under the State Plan ended. The type of surgery performed on Mrs. Cobb was also not authorized by the Benefit Document. No claims were submitted to Health Options, Inc., for medical expenses incurred for Mrs. Cobb's operation on November 11, 1985. None of the medical expense attributable to Mrs. Cobb's November 11, 1985, surgery were incurred with physicians or facilities approved by Health Options, Inc. By letter dated August 27, 1986, the Department denied the claims submitted to the State Plan attributable to Mrs. Cobb's November 11, 1985, surgery. Mr. Cobb filed a request for an administrative hearing to contest the Department's proposed denial.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMEDED that a final order be issued by the Department denying payment of claimed expenses attributable to Mrs. Cobb's surgery of November 11, 1985. DONE and ENTERED this 15th day of July, 1988, 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 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 864109 The Department has 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 have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number, of Acceptance or Reason for Rejection 1 18. The letter denying payment was dated August 27, 1986, and not September 4, 1986. See DOA exhibit 1. 2 7. 3 Hereby accepted. 4 7. 5 3. 6 4 and 5. 7-9 6. 10-12 11. Summary of testimony and irrelevant. Summary of testimony argument. Concerning the weight to be given evidence and cumulative. 15 7. 16 Hearsay. 17-18 Conclusion of law. 19-20 16. 21 Not supported by the weight of the evidence. 22 15. COPIES FURNISHED: O. C. Beakes, Esquire Lindner Smith, Jr., Esquire 836 Riverside Avenue Jacksonville, Florida 32205 Andrea R. Bateman, Esquire Department of Administration Room 438, Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether Respondent, an insurance agent licensed in Florida, violated specified Florida Statutes and agency rules in the sale of an annuity to two senior citizens, as charged in the Administrative Complaint, and, if so, the penalty that should be imposed against Respondent's license.
Findings Of Fact The Parties At all times relevant, Respondent was licensed by Petitioner as an annuity, health, and life insurance agent in Florida. Petitioner is the state agency charged with licensing and regulating insurance agents and taking disciplinary action for violations of the laws and rules it administers. Background Annuities This case arises from Respondent's sale of an Allianz Life Insurance of North America equity indexed annuity ("Allianz annuity") to Robert and Frances Wexler in June 2004. An annuity is a contractual arrangement under which an insurance company, in exchange for a premium, agrees to pay the owner a specified income for a period of time. Annuities generally are classified as "fixed" or "variable." Under a fixed annuity, the benefit is paid according to a predetermined interest rate. Under a variable annuity, the premium is invested on the owner's behalf, and the amount of the benefit, when paid, reflects the performance of that investment. Fixed annuities can be either "immediate" or "deferred." Under an immediate fixed annuity, the insurer begins paying the benefit upon purchase of the annuity. Under a deferred annuity, the premium is allowed to grow over time until the contract "matures" or is "annuitized" and the insurer begins paying the benefit. The Allianz annuity that Respondent sold to the Wexlers is a fixed deferred annuity. The Allianz annuity at issue also is an equity index annuity. This means that the insurer pays a benefit to the insured based on a premium that earns interest at a rate determined by the performance of a designated market index. The premium is not invested in the market for the owner's account; rather, the interest rate rises or falls in relation to the index's performance, within predetermined limits. Equity index annuities typically are long-term investments. Owners of equity index annuities have limited access to the funds invested and accumulating in their accounts, although some equity index annuities, such as the Allianz annuity at issue in this case, permit yearly penalty-free withdrawals at set percentages. The accrued interest generally is not taxed until the funds are withdrawn or the benefit is paid under annuity. The purchaser may incur substantial surrender charges for canceling the contract and withdrawing his or her funds before a specified date. Some equity index annuities identify a date——often many years in the future——on which the insurer will "annuitize" the contract if the purchaser has not already opted to do so. This date is sometimes called the "maturity date." The benefit payable under the annuity is determined based on the account's value as of the maturity date, and the payments to the owner of the annuity begin at that time. The Wexlers Robert Wexler was born in 1930. He was 73 years old in 2004, when Respondent sold him the Allianz annuity at issue in this case. His wife, Frances Wexler, was born in 1932, and she was 71 years old at the time. Both Wexlers finished high school and took some college courses. They married after Mr. Wexler joined the Air Force. While in the Air Force, Mr. Wexler studied electronics, which ultimately led to his career in that field in the private sector. He worked for IBM, Univac, and General Electric before retiring in 1994. Mrs. Wexler worked for a small family-owned printing firm for over 26 years, and retired in 1997. The Wexlers raised three children, and they lived in the same home in Pennsylvania for 40 years. While living in Pennsylvania, the Wexlers saved money by using Mrs. Wexler's salary to pay their living expenses and saving most of Mr. Wexler's earnings in a retirement account. They never bought annuities, but did trade stocks, which resulted in financial loss. For many years, the Wexlers visited Florida as "snowbirds" and eventually purchased a condominium in a gated community in Deerfield Beach, Florida. In 1998, the Wexlers sold their home in Pennsylvania, liquidated the stocks they owned, and bought a larger condominium in the same gated community. They moved permanently to Florida in 1998, with approximately $500,000 in liquid assets. The 2002 Aviva Annuity Respondent met the Wexlers in 2002, when he worked for the Cornerstone Financial Group ("Cornerstone"). Cornerstone had mailed out cards to persons 65 years old and older and the Wexlers sent in a reply card with boxes checked indicating interest in learning about Cornerstone's products. Based on that contact, Respondent arranged an in-home appointment with the Wexlers. At that time, the Wexlers informed Respondent that they had three financial investment goals: safety of their invested principal; long-term growth of their investment; and at some point years in the future, having a fixed income stream for the rest of their lives. The Wexlers consider themselves "conservative" financial investors, and they live off of their monthly social security and retirement pension checks. Being able to take money out of an annuity to cover routine living expenses was not a high priority for the Wexlers. They were more interested in leaving their investment alone and allowing it to grow, and they communicated this information to Respondent. Based on this information, Respondent sold the Wexlers an Aviva3/ equity index annuity. The Wexlers paid a $60,000.00 premium. The annuity was issued on June 11, 2002, and had a maturity date of June 11, 2031. The policy allowed partial withdrawal beginning immediately, without charge, of up to ten percent of the value of the account on the prior certificate anniversary date. If the insured withdrew more than that amount, a withdrawal charge was assessed, with the amount4/ of the withdrawal charge decreasing over a ten-year period, so that starting in year 11, there was no withdrawal charge. Pursuant to this withdrawal charge schedule, if the Wexlers withdrew all of their money from the policy——in effect, "surrendering" the policy——before the ten-year withdrawal charge period had expired, they would be assessed charges according to the withdrawal charge schedule. Under such circumstances, withdrawal charges are referred to as "surrender charges." The Aviva policy allocated the premium to three investment strategies. Specifically, 50% was allocated to the Annual Equity Index Strategy ("AEIS"), which is the Standard & Poors (S&P) 500 index excluding dividend income. The AES investment strategy had a minimum guaranteed interest rate of zero percent. The remaining 50% of the premium was invested equally in the Investment Grade Bond Index Strategy (IGBIS") and the Guaranteed One-Year Strategy ("GOS"). The IGBIS strategy was tied to the Lehman Brothers Aggregate Index, and, at the time, had a minimum guaranteed interest rate of two percent per year. The GOS investment strategy had a four percent per year current interest rate and a two percent minimum guaranteed interest rate per year. No evidence was presented about how the Aviva policy would have performed to date had the Wexlers not surrendered the policy. The 2004 Allianz Annuity In June 2004, Respondent paid the Wexlers another visit. At that time, Respondent was with Global Financial Group and was marketing different products. Respondent met with the Wexlers to discuss an Allianz annuity that, in his view, had "better" features than the Aviva annuity he sold them two years earlier. The evidence establishes that Respondent spent at least an hour or more reviewing the Allianz annuity with the Wexlers. In Mr. Wexler's own words, Respondent spent time "explain[ing] it, patiently talking about it." Mr. Wexler nonetheless claimed5/ at hearing that Respondent did not provide a comparison of the Alliance and Aviva policies. Respondent testified that he did provide such a comparison, and the undersigned finds his testimony more persuasive. Mr. Wexler testified that Respondent told them that surrendering their Aviva annuity and moving their funds into the Allianz annuity would cause them to incur a substantial surrender charge,6/ but that they would recoup the charge through a bonus provided by the Allianz annuity. Respondent credibly testified that he told the Wexlers that the bonus would be available if they annuitized the policy. Mr. Wexler did not recall Respondent discussing the specifics of annuitizing the Allianz policy with him, and Respondent confirmed that he did not extensively discuss annuitization with the Wexlers. This was because Mr. Wexler told Respondent that they had liquid assets and were not interested in immediately generating an income stream from the annuity, but instead were interested in leaving their investment alone to grow over time. Using information provided by Mr. Wexler, Respondent filled out paperwork, consisting of the Application for Annuity and Authorization to Transfer Funds, required for the Wexlers to surrender their Aviva annuity and purchase the Allianz annuity. According to Mr. Wexler, Respondent selected the type of product (here, the 10% Bonus PowerDex Elite Annuity) on the Application for Annuity form, and also selected the percentage of funds to be allocated into specific investment strategies on a Supplemental Application form. Respondent testified that he always fills out the forms for his clients, and he credibly testified that he reviewed the selected strategies with the Wexlers. Mr. Wexler executed the "Agreements and Signatures" section of the Application for Annuity.7/ This section states in pertinent part: It is agreed that: (1) All statements and answers given above are true and complete to the best of my knowledge; . . . (5) I understand that I may return my policy within the free look period (shown of the first page of my policy) if I am dissatisfied for any reason; and (6) I believe this annuity is suitable for my financial goals. Respondent provided the Wexlers with a copy of a Statement of Understanding regarding the Allianz annuity. This document explained the key aspects of the annuity in substantial detail. Mr. Wexler executed the Statement of Understanding, confirming that he received a copy of that document, and that he reviewed and understood key aspects of the annuity. The document states in pertinent part: I received a copy of this Statement of Understanding. The agent has answered my questions. I have also reviewed the 10% Bonus PowerDex Elite Annuity consumer brochure. I understand that any values shown, other than the Guaranteed Minimum Values, are not guarantees, promises, or warranties. I understand that I may return my policy within the free look period (shown on the first page of the policy) if I am dissatisfied for any reason. The Wexlers paid a premium of $58,125.01 for the Allianz annuity, and invested an additional $8000.00, for a total investment of $66,125.01. As a result of surrendering the Aviva policy to purchase the Allianz annuity, they incurred a surrender charge of $5,726.89. The Allianz annuity, Policy No. 70097189, was issued on July 16, 2004. Once the Allianz annuity was issued, Respondent delivered it to the Wexlers and reviewed it with them. Respondent again informed the Wexlers of the 20-day free look period during which they could return the annuity and obtain a full refund of the premium. Mr. Wexler did not read the annuity and "stashed it away." The Allianz annuity had been approved by Petitioner for sale to investors, including senior investors, when Respondent sold the annuity to the Wexlers in 2004. Respondent credibly testified that Mr. Wexler did not tell him that he had purchased annuities from other agents, and Mr. Wexler could not clearly recall8/ whether he had provided Respondent information regarding his other annuities purchases. Respondent earned a commission of $6,281.92 on the sale of the Allianz annuity to the Wexlers. Comparison of the Aviva and Allianz Annuities The parties agree that annuities are intended to be long-term investments. Beyond that, there is substantial disagreement regarding whether the Allianz annuity was, in reality, a "better" investment than the Aviva annuity for the Wexlers. Respondent maintained that the Allianz policy had several advantages over the Aviva policy. Petitioner asserts that the Allianz annuity either had some substantial disadvantages, or, at best, did not offer any significant advantages over the Aviva policy. Respondent testified that a key reason for introducing the Allianz policy to the Wexlers was that it had a higher index-tied earnings cap than the Aviva policy, so it could earn more than the Aviva policy. Petitioner asserts, and a review of the policies confirms, that the Aviva policy had a higher cap rate——specifically, 15% for the first year with a 10% minimum guaranteed index cap rate thereafter for the Aviva policy, as compared to 12% for the first year, with a guaranteed five percent minimum thereafter for the Allianz policy. Thus, the Aviva policy provides greater potential for index-tied earnings than the Allianz policy. The evidence shows that Respondent provided the Wexlers inaccurate information on this policy term. Respondent maintained that the Allianz annuity had a 100% participation rate, as compared to only a 60% participation rate for the Aviva policy, so that under the Allianz policy, the Wexlers would keep 100% of any gains due to increases in the S&P Index, whereas under the Aviva policy, they would keep only 60% of those gains. Petitioner disputes that the Aviva policy contained a limit on participation rate. A review of the policies shows that they both state a 100% participation rate in the selected investment indices; however, under the Aviva policy, there is a "certificate charge" that is deducted when calculating the owner's index earnings. Whether this deduction is expressed as a "lower participation rate" or considered a "fee," the fact remains that under the Aviva policy, the owner got to keep less money from his or her index investment. Accordingly, it is determined that Respondent accurately informed the Wexlers on this point. Respondent claimed, and apparently communicated to the Wexlers, that there was no risk in the Allianz investment, because gains resulting from the investment allocation indices were locked in so the Wexlers would never lose their invested principal or any gains they realized on the investment indices. Petitioner, on the other hand, asserted that the Allianz policy embodied substantial risk because negative index adjustments were deducted from the policy's current value. Although Petitioner is correct regarding the policy's current value, Respondent is correct regarding the effect of negative index performance on the annuity's high water value. The policy's annuitization value is the greater of these two values, so the high water value is likely more important for investors like the Wexlers, who wish to leave their investment alone rather than annuitize in the short term. Although the Wexlers' investment value under the Allianz annuity may have declined in years 2008 and 2009 due to poor S&P Index performance (which also would have affected the value of the Aviva policy, had the Wexlers still owned it), the annuitization value of the policy was not negatively affected by the poor performance of that index. In light of Respondent's understanding of the Wexlers' investment goals, his representations on this point were reasonable and not materially inaccurate. The Allianz policy provided a ten percent bonus for money invested for the first five years, and the bonus was accessible if either the policyholder annuitized the policy or as a death benefit to the policy's beneficiary. By contrast, the Aviva policy offered no bonuses after the first year. Petitioner characterizes the Allianz bonus as an "ephemeral" feature because of the limits on its availability. However, the credible evidence establishes that Respondent informed the Wexlers about these limitations, and that they were aware of them when they purchased the annuity. Under the Aviva policy, the Wexlers could annuitize at any time before the policy's maturity date. Under the Allianz policy they could only annuitize after five years, could not withdraw more than 5% of the account value of the annuity on an annual basis, and could not withdraw more than 25% of the account value over the life of the annuity. Notwithstanding, the credible evidence establishes that Respondent told the Wexlers about the annuitization limits of the Allianz policy, and they were aware of these limitations when they purchased the policy. Both policies imposed surrender charges for withdrawal of funds before the maturity date. Under the Aviva policy, withdrawal charges applied during the first ten years; under the Allianz policy, surrender charges could be incurred for the lifetime of the policy pursuant to a formula and terms established in the policy. This information is clearly stated in the policy's contract summary, and Respondent credibly testified that he fully reviewed the annuity with the Wexlers before he sold it to them, and again when he delivered it to them after issuance. Both annuities had death benefit features. The Allianz annuity provided that if the owner died, the accumulation value9/ would be paid to the beneficiary over a five-year period. The Aviva annuity provided that if the annuitant was less than 75 years old on the contract date, the death benefit would be the greater of the account value or the guaranteed account value.10/ On balance, the policies' death benefits features were similar, and there is no persuasive evidence that Respondent touted the Allianz annuity as having a superior death benefit to induce the Wexlers to purchase the annuity. The Allianz annuity featured a nursing home benefit that allowed withdrawal of the policy's full annuitization value over a five-year period if the insured was admitted to a nursing home for 30 or more days. However, the Wexlers already had insurance coverage providing assisted living benefits. Respondent acknowledged that the Allianz policy nursing home benefit was of relatively little value to the Wexlers. The evidence is insufficient to prove that Respondent represented this feature as a substantial advantage in inducing the Wexlers to purchase the Allianz annuity. Ultimate Findings of Fact Regarding Alleged Statutory and Rule Violations For the reasons explained in detail below, the undersigned determines, as a matter of ultimate fact, that Petitioner did not show, by clear and convincing evidence, that Respondent violated section 626.611(5), (7), (9), or (13); 626.9541(1)(a)1, (1)(e)1, or (1)(l); or 626.621(6); or rules 69B-215.210 or 69B-215.230.11 Alleged Violations of Section 627.611 Section 626.611 sets forth violations for which suspension or revocation of an insurance agent's license is mandatory. Petitioner has charged Respondent with violating sections 626.611(5), (7), (9), and (13). These offenses require a finding that the licensee had intent to commit the act constituting the offense. See Beckett v. Dep't of Fin. Servs., 982 So. 2d 94, 99 (Fla. 1st DCA 2008); see also Bowling v. Dep't of Ins., 394 So. 2d 165 (Fla. 1st DCA 1981). Here, the evidence does not clearly and convincingly show intent on Respondent's part with respect to any of the alleged violations of section 627.611. Although Respondent provided inaccurate information to the Wexlers on a material term——the comparative index earnings caps, which affect how much the Wexlers could earn through the policies' investment strategies——the evidence does not establish that Respondent intentionally misinformed the Wexlers on this policy term. To that point, Respondent accurately represented all other material terms of the Allianz policy to the Wexlers. The undersigned finds this probative in determining that Respondent's misstatement was made unintentionally, rather than willfully or knowingly. See Munch v. Dep't of Bus. and Prof'l Reg., 592 So. 2d 1136, 1143-44 (Fla. 1st DCA 2008)(to find an offense of "misrepresentation," an intentional act must be proven). Section 626.611(5) makes the willful misrepresentation of any insurance policy or annuity contract or the willful deception with regard to any such policy or contract a ground for suspending or revoking an agent's license. Petitioner did not prove that Respondent willfully misrepresented any aspect of the Allianz or Aviva policies to the Wexlers or willfully deceived them regarding the policies. Respondent credibly testified that he reviewed the key terms of the Allianz policy with the Wexlers, and there is no persuasive evidence in the record to the contrary. Although Respondent did inaccurately represent the Allianz policy as having greater index-tied earnings potential than the Aviva policy, the evidence does not clearly and convincingly establish that Respondent willfully misrepresented this information to the Wexlers, or willfully deceived them, to induce them to purchase the policy. Accordingly, Petitioner did not prove, by clear and convincing evidence, that Respondent violated section 626.611(5). Section 626.611(7) makes the demonstrated lack of fitness or trustworthiness to engage in the business of insurance a ground for suspending or revoking an agent's license. Again, a finding of intent on the licensee's part is required to find a violation of this subsection. The evidence does not clearly and convincingly establish that Respondent intended to provide incorrect, misleading, deceptive, or fraudulent information to the Wexlers to induce them to purchase the Allianz policy. As such, Petitioner failed to prove, by clear and convincing evidence, a demonstrated lack of fitness or untrustworthiness on Respondent's part to engage in the business of insurance, in violation of section 626.611(7). Section 626.611(9) makes fraudulent or dishonest practices in conducting business under an insurance agent license grounds for suspension or revocation of the license. As previously discussed, although Respondent provided incorrect information to the Wexlers regarding the comparative investment strategy caps for the Allianz and Aviva annuities, the evidence does not clearly and convincingly establish that Respondent intended to do so. Accordingly, Petitioner failed to prove, by clear and convincing evidence, that Respondent violated section 626.611(9) by engaging in fraudulent or dishonest practices in the sale of the Allianz policy to the Wexlers. Section 626.611(13) provides that willful failure to comply with, or willful violation of, Petitioner's orders or rules, or any willful violation of any provision of the Florida Insurance Code constitutes a basis for suspending or revoking an insurance agent license. Again, Petitioner failed to prove, by clear and convincing evidence, that Respondent willfully violated its rules or orders, or willfully violated the Florida Insurance Code, in connection with the sale of the Allianz annuity to the Wexlers. Although Respondent did provide incorrect information on a key term——the comparative investment strategy caps, which affected the annuities' comparative earnings potential——the persuasive evidence in the record does not support a finding that Respondent willfully did so. Thus, Petitioner failed to prove, by clear and convincing evidence, that Respondent violated section 626.611(13). Alleged Violations of Section 626.9541 Section 626.9541 is entitled "unfair methods of competition and unfair or deceptive acts or practices defined." This statute defines the types of acts that constitute unfair methods of competition and unfair or deceptive acts or practices in the insurance industry, but it does not independently authorize disciplinary action. Werner v. Dep't of Ins., 689 So. 1211, 1214 (Fla. 1st DCA 1997). Petitioner has charged Respondent with engaging in acts set forth in section 626.9541(1)(a)1., specifically, that he knowingly made, issued, circulated, or caused to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which misrepresents provides that making any estimate, statement, sales presentation, omission, or comparison which misrepresents the benefits, advantages, conditions, or terms of any insurance policy. As discussed above, the evidence does not clearly and convincingly establish that Respondent knowingly engaged in any of these acts. Thus, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in unfair methods of competition or unfair or deceptive acts as provided in section 626.9541(1)(a)1. Petitioner also charged Respondent with engaging in acts defined in section 626.9541(1)(e)1. This section requires, as a predicate for the imposition of discipline, a finding that the licensee knowingly made false material statements through a variety of actions described in that provision. Again, the evidence does not establish that Respondent knowingly engaged in any of these acts. Accordingly, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in unfair methods of competition or unfair or deceptive acts as provided in section 626.9541(1)(e)1. Petitioner has charged Respondent with "twisting," which is defined in section 626.9541(1)(l) as knowingly making any misleading representation or incomplete or fraudulent comparisons or fraudulent material omissions of or with respect to any insurance policies for the purposes of inducing, or tending to induce, any person to surrender, terminate, or convert any insurance policy or to take out a policy of insurance in another insurer. Again, there is no persuasive evidence that Respondent knowingly committed any of the acts described in this statute. Thus, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in twisting under section 626.9541(1)(1), Florida Statutes. Alleged Violation of Section 626.621 Section 626.621 sets forth violations for which suspension or revocation of an insurance agent's license is discretionary.12/ Petitioner has charged Respondent with violating section 626.621(6) by engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited by part IX of chapter 626, or having otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest. For the reasons previously discussed, the evidence does not clearly and convincingly establish that Respondent engaged in any actions that could be considered unfair methods of competition or deceptive acts or practices under chapter 626, part IX. Accordingly, Petitioner has not shown, by clear and convincing evidence, that Respondent engaged in acts under section 626.621(6) that justify the suspension or revocation of his insurance agent's license. Alleged Violations of Agency Rules Petitioner charged Respondent with violating rule 69B- 215.210. This rule provides that the business of life insurance13/ is a public trust in which all agents of all companies have an obligation to work together in serving the best interests of the insuring public, by understanding and observing the laws governing life insurance by letter and in spirit by presenting accurately and completely every fact essential to a client's decision, and by being fair in all relations with colleagues and competitors and always placing the policyholder's interests first. The rule implements section 626.797, entitled "code of ethics," which directs Petitioner to adopt a code of ethics to "govern the conduct of life agents in their relations with the public, other agents, and the insurers," and to establish standards of conduct to avoid the commission of acts that would constitute grounds for suspension or revocation under sections 626.611, 626.621, and unfair trade practices and unfair methods of competition under chapter 626, part IX. The rule must be interpreted and applied consistent with the law it is implementing. As previously discussed, the violations of sections 626.611, 626.621, and 626.9541 with which Respondent was charged all require that he have intent to commit the act constituting the violation. The persuasive evidence does not establish that Respondent had the requisite intent necessary to find a violation of rule 69B-215.210.14/ Petitioner also charged Respondent with violating rule 69B-215.230. Rule 69B-215.230(1) makes unethical the misrepresentation of the terms of any policy issued or to be issued or the benefits or advantages promised by that policy. This rule implements sections 626.797 and 626.9541(1)(a) and (b), violations of which require a showing or willful or knowing misrepresentation. Further, "misrepresentation" requires that an intentional act be proven for a violation to be found. See Walker v. Dep't. of Bus. and Prof'l Reg., 705 So. 2d 652, 654 (Fla. 5th DCA 1998). As previously discussed, the evidence does not clearly and convincingly establish that Respondent knowingly or willfully provided incorrect information or misstatements to the Wexlers regarding the Allianz policy. Accordingly, Petitioner has not shown, by clear and convincing evidence, that Respondent violated Rule 69B-230.210(1).15/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 15th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 15th day of June, 2012.
The Issue The issue in the case is whether the State of Florida Employees Group Health Self Insurance Plan Benefit Document provides coverage for a maxillary subperiosteal implant surgical procedure under the circumstances described below.
Findings Of Fact At all material times, Petitioner has been insured under the State of Florida Employees Group Health Self Insurance Plan Benefit Document, effective July 1, 1988 (the "Plan"). Dr. Clark F. Brown, Jr. is a dentist licensed to practice in the State of Florida. His specialty is dental implantology. The subperiosteal implant, which is the subject of this case, is a framework that rests on top of the bone underneath the tissue. Following the insertion of the framework, the tissue reattaches to the jawbone, thereby securing the framework to the bone. The implant procedure takes two days, but can be performed in Dr. Clark's office. On the first day, a direct bone impression is taken. In the process, the gum tissue is cut along the entire remaining ridge and lifted back almost to the base of the eye, floor of the nose, and palate. After the impression is taken, the incision is closed with sutures. On the next day, the stitches are removed, the implant is installed, and the incision again closed with sutures. On July 31, 1987, Petitioner visited Dr. Clark and complained of difficulties wearing his upper denture. Upon examination, Dr. Clark discovered that Petitioner lacked adequate bone to retain an upper denture. Lacking about 90% of the bone in the vicinity of the upper arch, Petitioner's upper denture was highly unstable. By letter dated August 8, 1987, Dr. Clark informed the Plan administrator of Petitioner's condition and proposed a full maxillary subperiosteal procedure for the installation of an orthopedic augmentation appliance. By letter dated December 11, 1987, the Plan administrator informed Dr. Clark that the proposed procedure was not covered under the Plan. The letter explains that dental services are a specific exclusion unless performed "as the result of an accident where a natural tooth has been damaged and the treatment is rendered within 120 days from the date of the accident." On December 17, 1987, Dr. Clark relined the denture that fit Petitioner the best. As he had warned Petitioner in advance, the procedure was unsuccessful. On June 26, 1988, Dr. Clark prepared a new upper denture in preparation for the installation of mucosal implants, which utilize the gum for support. Dr. Clark and Petitioner pursued this treatment largely because it was less expensive that the subperiosteal implant for which the Plan administrator had refused coverage. Dr. Clark later installed these implants, but they were unsuccessful due to the lack of bone. They were removed in November, 1988. At this point, the subperiosteal implant remained the only available treatment for Petitioner. On February 2, 1989, Dr. Thomas Priest, a physician licensed to practice in the State of Florida, examined Petitioner and found that his gums were severely receded, his alveolar ridge was absent, and his lower teeth were in poor shape. Considering the complaints of Petitioner concerning digestive disorders and weight loss, Dr. Priest determined that Petitioner would be a good candidate for, and might benefit from, the maxillary subperiosteal implant. Dr. Priest reached this conclusion based in part on the experience of other patients who had undergone similar procedures. Dr. Clark and the Plan administrator exchanged correspondence through the first half of 1989, at which time the administrator, in response to a threat of litigation, stated that "the preparation of the mouth for dentures is considered to be a dental procedure and non-covered." She then referred Dr. Clark to Respondent. The loss of bone was probably caused by Petitioner wearing loose upper dentures for an extended period of time. However, severe periodontal disease, which cannot be ruled out as a possible cause, could also result in the loss of bone. Another potential cause of the loss of bone is trauma from accidental injuries, such as those typically suffered in an automobile accident. However, this potential cause can be ruled out in Petitioner's case. No accident has necessitated the subject implant procedure, nor has any accident preceded the proposed procedure by 120 days. The Plan contains three coverage sections. Section II describes "Covered Hospital and Other Facility Services." Section III describes "Covered Medical--Surgical Benefits." Section IV describes "Other Covered Services." Section II deals with hospitals primarily and is not applicable to the present case. Subsections III.A. and D. provide coverage for "medically necessary inpatient/outpatient services provided to an insured by a . . . physician for the treatment of the insured as a result of a covered accident or illness." Section IV provides coverage for "medically necessary services when ordered by a physician for the treatment of an insured as a result of a covered accident or illness," including, at Subsection IV.D., "other medical supplies and prostheses . . . determined by the Administrator to be medically necessary for the treatment of an insured's condition." The phrase, "covered accident or illness," which is not defined in the Plan, apparently refers to accidents or illnesses that are not elsewhere excluded, such as in Section VII on Exclusions and Section VIII on Limitations. Section VII.A. excludes "services for cosmetic surgery or treatment unless the result of a covered accident as provided in Subsection VIII.A." However, Subsection VII.A. adds that cosmetic surgery is covered if it is: a medically necessary procedure in the correction of an abnormal bodily function; [or) for reconstruction to an area of the body which has been altered by the treatment of a disease, provided such alteration occurred while the insured was covered under the Plan. Subsection VII.G excludes: Services and supplies in connection with dental work, dental treatment, or dental examinations unless the result of a covered accident as provided in Subsection VIII.B., except that in no case shall orthodontia be covered. Subsection VIII.A. provides the following limitation upon coverage: Cosmetic surgery or treatment necessary for the repair or alleviation of damage to an insured covered by the Plan if such surgery or treatment is the result of an accident sustained while the insured is covered under the Plan and actually performed while the Plan is in force . . Subsection VIII.B. provides the following limitation upon coverage: Any dental work, dental treatment or dental examinations medically necessary for the repair or alleviation of damage to an insured is covered by the Plan only if such work, treatment or examination is (1) the result of an accident sustained while the insured is covered under this Plan and (2) rendered within . . . 120 days of the accident. . Subsection I.AX. defines a physician to include: a licensed dentist who performs specific surgical or non-dental procedures covered by the Plan, or who renders services due to injuries resulting from accidents, provided such procedures or services are within the scope of the dentist's professional license. Subsection I.AM(b). defines "medically necessary" to mean that: in the opinion of the Administrator the service received is required to identify or treat the illness or injury which a physician has diagnosed or reasonably suspects. The service must (1) be consistent with the diagnosis and treatment of the patient's condition (2) be in accordance with standards of good medical practice, and (3) be required for reasons other than convenience of the patient or his/her physician. The fact that a service is prescribed by a physician does not necessarily mean that such service is medically necessary. Subsection I.AE. defines "illness" as: physical sickness or disease, . . . bodily injury, [or] congenital anomaly . .
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a Final Order determining that the proposed procedure, under the facts of this case, is covered by the Plan. DONE and ORDERED this 21 day of March, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 21 day of March, 1990. COPIES FURNISHED: Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 William F. Lennan 740 Hunan St., N.E. Palm Bay, FL 32907 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issue for determination in this case is whether the Florida insurance license of Respondent should be disciplined for violation of certain provisions of Chapter 626, Florida Statutes, as contained in allegations set forth in the five- count Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying and documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003), and the record compiled herein, the following relevant and material facts are found: The Department is the agency of the State of Florida vested with the statutory authority to administer the disciplinary provisions of Chapter 626, Florida Statutes (2001). Respondent is and, at all times material, was licensed in Florida as a life and health insurance agent. His Florida insurance license number is A283290. The Department has disciplined the license of Respondent on two previous occasions. The last discipline was taken pursuant to a Consent Order in Case Number 20371-97-A. Respondent was placed on probation for a period of three years beginning on July 29, 1999, and ending July 9, 2002, as a result of having enrolled five customers in a health plan without their knowledge or consent. A condition of his probation required Respondent to "strict[ly] adhere to all provisions of the Florida Insurance Code and Rules of the Department of Insurance and Treasurer" during his probation period. Respondent was also fined $7,500. Respondent is and, at all times material, was operating as a health insurance agent for PHP. Respondent, as an employee of PHP, was paid a commission on his enrollment of each client with PHP. He was assigned PHP employee number 6232. His employment with PHP did not preclude nor deny his freedom to market life insurance. PHP is an insurance company that maintains a contract with the State of Florida's Agency for Health Care Administration (AHCA) to deliver benefits to Medicaid recipients. The state screens potential Medicaid recipients to determine individual eligibility. The Medicaid plan "marketing agent," who is an insurance agent (Respondent), must hold an "event," invite the public, and explain benefits of the PHP plan. Each such event shall be approved by AHCA. As a part of the terms of employment with PHP, certain activities are prohibited and are not to be engaged in by "marketing agents." The prohibitions included: knocking on doors and offering to parents of children who have been determined eligible for benefits monetary awards, gifts, rebates, or any other incentives to induce enrollment of a child in Medicaid plans. PHP retained MDA Investigations, an independent investigative company, to investigate irregularities in the marketing processes resulting from marketing agents' conduct and/or client dissatisfaction brought to the attention of PHP and to provide PHP with an investigative report of each such irregularity. It was through this agency that complaints about Respondent were referred for investigation. Count I Julia Benefield (Ms. Benefield), complainant, has a high school diploma and is the mother of T.K. and K.K. Both children, having met certain entitlement criteria determined by the state, are entitled to receive Medicaid benefits. Ms. Benefield decides what physician treats her children and, at all times material to this issue, had previously selected Dr. Arlene Haywood as their chosen health care provider. From her past experience in selecting the health care provider for her children, Ms. Benefield was not new to the required enrollment processes. She recalled initially meeting Respondent at the apartment rented by her mother. During the meeting, Respondent asked if her children were on Medicaid, to which she responded affirmatively, informing Respondent that they received medical services from Dr. Arlene Haywood, a physician who had previously treated Ms. Benefield when she was a child. During the course of his sales pitch conversation, Respondent discussed with Ms. Benefield life insurance policies for her minor children and intermingled his discussion with statements urging her to switch her Medicaid provider to PHP. During the course of this meeting and conversation, Ms. Benefield signed a "Request to Enroll Card" with the clear understanding that her signature thereon meant: "[I]t was to put my kids on life insurance." She emphatically denied ever intending or desiring to change from her then present physician provider and enroll her children in PHP offered by Respondent. During this process, Respondent presented Ms. Benefield with a Request to Enroll Card. The card, which Ms. Benefield acknowledged signing, contained the names, dates of birth, and social security numbers of her two children. Above the signature line, the Request to Enroll Card has printed the condition of enrollment, to wit: "By signing this card, I understand that I am only indicating my intent to enroll my family members in the Medicaid HMO plan listed above. To complete the enrollment process I will need to sign and return an enrollment form that will be sent to my home by the Medicaid Options Program." Ms. Benefield became aware of the switch of her Medicaid provider from Dr. Arlene Haywood to PHP when she received a letter mailed to her mother's apartment address informing her that her children were then enrolled (switched) with PHP. This switch to PHP caused her not to be able to obtain medical services from the children's regular pediatrician, Dr. Arlene Haywood. Ms. Benefield, dissatisfied with the method and manner of Respondent changing her Medicaid provider against her stated desires and without her permission, complained about the switch to PHP to the Department. Respondent justified and defended his conduct in this instant with the summary statement: "that if she knew the difference of the two policies [PHP and life insurance] then how could she have made a mistake when life insurance cost money and Medicaid is free." Ms. Benefield firmly maintained, "[H]e went ahead and enrolled them anyway [in PHP] without my permission." At the time Ms. Benefield executed the enrollment card presented to her by Respondent, it was not her intent to switch from her then Medicaid provider, Dr. Arlene Haywood, to PHP. The intentional misrepresentations made by Respondent induced Ms. Benefield to sign the enrollment card. Count II Dahlia Malcolm (Ms. Malcolm), complainant, is a high school graduate who also earned a cosmetology degree. She is the mother of A.M., a minor who is qualified to receive Medicaid benefits. Ms. Malcolm recalled Respondent coming uninvited to her home during which time he repeatedly suggested switching from her Medipass provider to his employer, PHP provider. Following the pattern of his conversation with Ms. Benefield, Respondent discussed with Ms. Malcolm life insurance policies for her minor child intermingled with statements urging her to switch her Medicaid provider to PHP. In this instant, and as an additional inducement incentive, Respondent offered to give Ms. Malcolm money to cover the cost of a "pizza" or "pizza party," if Ms. Malcolm would either invite her friends over or provide Respondent with the names of her friends with children who were Medicaid eligible. Ms. Malcolm recalled laughing at the suggestion of a "pizza party." A few weeks later, she received a package mailed to her stating: "thank you for enrolling in PHP." According to Ms. Malcolm, the signature "Dahlia Malcolm" on the Request to Enroll Card, dated July 5, 2001, was "definitely" not her signature. She emphatically denied giving Respondent permission or authority to enroll her son in PHP. Dissatisfied with Respondent switching her Medicaid provider, Ms. Malcolm complained to both PHP and the Department. Respondent suggested that the mother of Ms. Malcolm was probably not happy with Ms. Malcolm enrolling her children with PHP and that to cover her mistake, Ms. Malcolm made a complaint to the Department; that suggestion is without merit. Ms. Malcolm at no time evidenced a knowing intent to switch her Medicaid provider to PHP. Assuming Ms. Malcolm did, in fact, sign the Request to Enroll Card, her inducement to sign the Request to Enroll Card was due to the intentional misrepresentations made to her by Respondent. Count III The complainant, Calandra Birdine, did not appear at the final hearing to testify. Respondent consented to admission of a Department Inquiry form containing statements from another person, written by Joseph Rufus, who also did not testify. Attached thereto were two Request to Enroll Cards containing the names and ages of six minor children who were qualified to receive Medicaid services, dated August 23, 2001. Although admitted into evidence without objection from the Respondent, the documents are hearsay, as are the contents. The Department failed to provide independent corroboration of the hearsay statements, and the documents and their contents are insufficient to support a finding of fact. Accordingly, the Department failed to prove by competent substantial evidence the allegations contained in Count III of the Administrative Complaint. Count IV The complainant, Monique Young, did not appear at the final hearing to testify. Respondent consented to admission of the Department Inquiry form that contained statements from another person, written by Keith Yore, who did not testify. Attached thereto were two Request to Enroll Cards containing the names and ages of eight minor children who were qualified to receive Medicaid services, dated May 11, 2001. Although admitted into evidence without objection from Respondent, the documents and contents are hearsay. The Department failed to provide independent corroboration of the hearsay evidence, and, therefore, the documents and their contents are insufficient to support a finding of fact. Accordingly, the Department failed to prove by competent substantial evidence allegations contained in Count IV of the Administrative Complaint. Count V The complainant, Jamie Powell, did not appear at the final hearing to testify. Respondent consented to admission of the Department Inquiry form containing statements of another person, written by Robekah (no last name in the record), who did not testify. Attached thereto was one Request to Enroll Card containing the name and age of one minor child who was qualified to receive Medicaid services, dated June 2, 2001. Although admitted into evidence without objection of Respondent, the documents and contents are hearsay. For a lack of independent corroboration, the documents and contents are insufficient to support a finding of fact. Accordingly, the Department failed to prove by competent substantial evidence the allegations contained in Count V of the Administrative Complaint. Respondent complained that he was employed with PHP for 11 months after the first complaint was filed against him in January 2001. He maintained that he was not notified of these complaints by the special investigator, Gladys Kennedy, until December 2001, one month after he no longer worked for PHP. It was his belief that PHP instigated the complaints because he went to work with a competing company. Respondent maintains that he had written over 1,500 applications per year with PHP and his success record demonstrated that "I must be doing something right." Respondent, under the impression that the Department assumed he was taking advantage of his client because of their educational level, testified that he, too, has only a high school diploma. Respondent, evidenced by Findings of Fact 3 through 12 hereinabove, violated his probation condition imposed in the Consent Order, of July 29, 1999, in Case Number 20371-97-A.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order as follows: Finding Respondent, Roger Lee White, guilty, as alleged in Count I and Count II of the Administrative Complaint, of violating Section 626.611 and Subsections 626.9541(1)(k)1. and 626.611(7), (9), and (13), Florida Statutes. Revoking the license of Respondent and eligibility for licensure. Dismissing Counts III, IV, and V of the Administrative Complaint filed against Respondent, Roger Lee White. DONE AND ENTERED this 16th day of December, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 16th day of December, 2003. COPIES FURNISHED: David J. Busch, Esquire Department of Financial Services, Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Roger Lee White 257 Coastal Hill Drive Indian Harbour Beach, Florida 32937 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
The Issue Did Respondent, Fresenius Medical Care (Fresenius), discriminate against Petitioner, David E. McDonald, in employment on account of his disability? Did Fresenius discriminate against Mr. McDonald in employment on account of his age?
Findings Of Fact Mr. McDonald worked for Fresenius as a social worker in its Sebring, Florida, facility. Fresenius provided Mr. McDonald family and medical leave because of back and knee problems. After Mr. McDonald exhausted the available leave, Fresenius granted him non-FMLA medical leave. Because of his continuing health problems, Mr. McDonald obtained long-term disability benefits in 2013 under a plan provided by CIGNA and sponsored by Fresenius. Mr. McDonald was 79 years old. Mr. McDonald’s testimony established that he received one year of benefit payments under the plan. On August 29, 2013, Mr. McDonald wrote Fresenius a letter identified as regarding “L.T.D. approval.” The first three paragraphs stated: On Saturday 7/27/13, I received a copy of the letter dated 7/19/13 sent to you by Ryan Zech, of CIGNA, informing you that my “claim for Long Term Disability was approved, benefits starting on 8/07/13.” This means, barring the time it takes for me to reconcile my affairs with our H.R Dept. that my employment with F.M.C. has come to an end. I had hoped that my medical condition would have improved, such that I would have been able to perform effectively, the required percentage of my duties to qualify to return to F/T employment. This has not turned out to be the case. It is therefore with mixed sentiments that I accept the medical decision/s of CIGNA and my attending physicians including my “Eye specialists." This letter stated Mr. McDonald’s voluntary decision to end his employment with Fresenius. Mr. McDonald did not present evidence that the decision was coerced or even encouraged by any representative of Fresenius. Mr. McDonald voluntarily terminated his employment with Fresenius. Mr. McDonald does not maintain that Fresenius discriminated against him on account of age or disability. He testified repeatedly and clearly that he does not claim that Fresenius discriminated against him in any way on account of his age or physical condition. Mr. McDonald bases his complaint upon his assertion that CIGNA representative Mr. Zech did not properly advise him that the long-term disability policy provided only one year of payments. Mr. McDonald also did not present any evidence that could support an inference that Fresenius discriminated against him on account of his age or a disability. Mr. McDonald did not argue or present evidence that CIGNA employee Ryan Zech was an employee or agent of Fresenius.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of David E. McDonald. DONE AND ENTERED this 13th day of May, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of May, 2015.
The Issue Whether the State of Florida Employees Group Health Self Insurance Plan is responsible for paying medical expenses incurred by Petitioner's newborn child where Petitioner had only individual coverage in effect at the time of the child's birth.
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 (State Group Plan), or they may enroll in other plans, such as HMOs. The State Group Plan is a plan of self insurance established by the State and administered by Blue Cross/Blue Shield. This plan is described in general terms by a Plan Brochure and is described in more detail by the contract of insurance contained in the State Self Insured Health Plan's Benefit Document (Plan Document). The State Group Plan is regulated by those rules contained in Chapter 22K, Florida Administrative Code. At the time employees begin their employment with the State, they may select which, if any, of the optional health insurance programs offered by the State they desire. Thereafter, employees may only join one of the insurance programs or switch between programs during an annual open enrollment period. An employee who elects coverage from the State Group Plan may purchase either individual coverage or family coverage. Individual coverage provides health insurance coverage for only the individual employee. Family coverage provides health insurance coverage for the individual employee and the employee's eligible dependents for whom the employee has elected coverage. Family coverage does not begin until after the application for coverage is processed and the premium for family coverage is paid. The monthly premium for family coverage is paid one month in advance. An employee can, but he does not have to, wait for an open enrollment period to switch from individual coverage to family coverage. An employee having individual coverage may change to family coverage at any time during the year prior to the acquisition of an eligible dependent or at a time that is within 31 days of the date of acquisition of any eligible dependent. If family coverage is requested after the acquisition of the dependent, there is a gap in the coverage of the dependent between the date of acquisition and the date coverage begins. There is no retroactive coverage. An employee who completes the pertinent application for family coverage, who submits the application, and who pays the first month's premium for family coverage prior to the acquisition of the dependent has family coverage in place at the time the dependent is acquired through birth, adoption, or other means. Consequently, there is no gap in coverage between the date of acquisition and the effective date of coverage for that dependent. Petitioner is an associate professor of management and Director of the Doctoral Studies Program in the College of Business Administration at Florida International University (FIU). Petitioner teaches courses in a variety of areas including business administration, wage and salary administration, and insurance benefits. Petitioner enrolled in the State Group Plan in 1982. Petitioner was knowledgeable about the State Group Plan and had, from time to time, compared its benefits to those of other plans. At the time of their marriage, Petitioner and his wife reviewed their insurance coverage and decided not to convert their individual policies to one policy with family coverage. From the date of his initial enrollment until April 1989, Petitioner had individual coverage. On March 8, 1989, Petitioner executed the forms that were necessary to change his individual coverage to family coverage. Petitioner's family coverage went into effect on April 1, 1989, after the application was processed and the premium was collected. In March 1988 Petitioner married Annette Wellinghoff. Petitioner and his wife retained their respective individual insurance policies after their marriage. Mrs. Kroeck was not a state employee so the insurance coverage she had was independent of her husband's coverage. In August 1988 Petitioner and his wife learned that Mrs. Kroeck was pregnant with an expectant due date in February 1989. In August 1988, Petitioner telephoned the personnel office at FIU to inquire as to obtaining coverage for the expected child. The general information given Petitioner in response to his questions was accurate. He was told that he could convert his individual coverage to family coverage, if he so desired, during the open enrollment period scheduled for December 1, 1988, through January 31, 1989. There was no evidence that Petitioner specifically inquired as to when he should begin family coverage in order to have the child's birth expenses covered. Likewise, there was no evidence that Petitioner was specifically told that he could convert his coverage to family coverage after the birth of his child and have the medical expenses covered from the time of birth. Petitioner did not request any written information about the conversion process, nor did he request an application form to effectuate the conversion. Petitioner did not know the name of the person with whom he was speaking, only that she was a representative of the personnel office. Petitioner did not contact the FIU Personnel Office again until after the birth of his son. Instead, Petitioner relied upon his wife to take care of securing health insurance. Petitioner delegated this responsibility to his wife because she was also experienced and knowledgeable in matters concerning employee benefits and health insurance plans. Mrs. Kroeck has had at least 3 years experience in health insurance benefits administration. In December 1988 general information relating to the open enrollment program was mailed to all state employees, including Petitioner. Included in the information package were a Plan Brochure for the State Group Plan and an enrollment form for the various insurance options offered to State employees. Mrs. Kroeck read the application form and a portion of the Plan Brochure. Neither Petitioner nor his wife read, prior to the birth of their child, the section of the Plan Brochure entitled "Purpose of This Brochure". That section states that the Plan Brochure is not intended to be a contract document, that it is intended to give a summary of available benefits, and that an employee should contact either his personnel office or the office of the Division of State Employees' Insurance for the answer to questions. The employee is told that the contract document is the Plan Document and that a copy of the Plan Document is on file at the employee's personnel office. That section also contains the following admonition: The agency personnel office will provide needed assistance to State officers and employees enrolling in the Plan; however, such officers or employees should take care to assure that they receive the coverage applied for and that proper deductions are made. On January 9, 1989, Mrs. Kroeck telephoned the personnel office at FIU with questions relating to listing the unborn child as a dependent on the application form that had been mailed to Petitioner in December. Her questioning centered on how to complete the name, date of birth and social security number for an unborn dependent. Clara Martinez, the employee in the personnel office to whom Mrs. Kroeck spoke, does not recall talking to Mrs. Kroeck on January 8, 1989. At the time of this conversation, Ms. Martinez knew that family coverage had to be in place prior to the acquisition of a dependent for the dependent to be covered as of the date of acquisition. If Ms. Kroeck had asked Ms. Martinez a question to which Ms. Martinez did not know the answer, Ms. Martinez would have contacted the office of the Division of State Employees Insurance in Tallahassee for the answer. The evidence fails to establish that Mrs. Kroeck was misinformed by Ms. Martinez or that she specifically inquired as to the effective date of the family coverage. On February 19, 1989, Mrs. Kroeck had her baby. The baby was admitted to the hospital in his own name and incurred, in his own name, expenses in the amount of $4,274.95, for which Petitioner and his wife were responsible. On March 8, 1989, Petitioner signed an application to change his individual coverage to family coverage. Family coverage became effective on April 1, 1989, after the application was processed and the premium for family coverage was collected. At the time of the birth of his son, Petitioner had individual coverage issued through the State Group Plan. Petitioner's son was not a beneficiary under the State Group Plan at the time the medical expenses which are at issue were incurred. Petitioner's request for payment of the medical expenses incurred by his son at birth was denied by Respondent and this proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Department of Administration enter a final order which denies the claim for payment of the medical expenses incurred by Petitioner's son prior to the effective date of family coverage. DONE AND ENTERED this , 27th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 27th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4929 The following rulings are made on the proposed findings of fact submitted on behalf of Respondent. 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 7 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 7 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 8 of the Recommended Order. 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 9 of the Recommended Order. 5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 9 of the Recommended Order. 6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 9 of the Recommended Order. 7. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence as to Ms. Alam and as being unnecessary to the conclusions reached as to Ms. Martinez. The proposed findings of fact in paragraph 19 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 20 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 23 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 24 are adopted in material part by paragraph 18 of the Recommended Order. The proposed findings of fact in paragraph 25 are adopted in material part by paragraph 16 of the Recommended Order. The proposed findings of fact in paragraph 26 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 27 are adopted in material part by paragraph 4 of the Recommended Order. COPIES FURNISHED: Augustus Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kark G. Kroeck 9853 Costa del Sol Boulevard Miami, Florida 33178 Alette A. Lhutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Grieder, Esquire Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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
