Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency responsible for the licensure and discipline of persons holding or those eligible to hold various insurance licenses. At all times material to this case, Respondent was licensed and eligible for licensure in this state as a health insurance agent. For all policies described below, Respondent was eligible to receive a sales commission and a bonus package which provided Respondent incentive to complete sales of insurance policies. At all times material to this case, Respondent acted as a sales agent for the following insurance companies: Diversified Health Services, National States Insurance Company, Penn Treaty, and Transport Life. Respondent sold health insurance policies, Medicare supplements, home nursing-care policies, nursing home policies, and booster plans to supplement additional coverage under Part B of Medicare. On or about April 20, 1988, Respondent went to the home of Martha and Sam Klingensmith in Port St. Lucie, Florida. Respondent's visit was in response to an information lead card that Mrs. Klingensmith had mailed to an insurance company. Mr. Klingensmith had had surgery in January, 1988, on a malignant brain tumor. Mrs. Klingensmith was anxious for her husband to receive the best care possible and hoped to obtain insurance benefits to help with the costs associated with that care. Mrs. Klingensmith told Respondent about her husband, who was too sick to be interviewed by Respondent (he was bedridden in another room). At that time Mrs. Klingensmith advised Respondent that she and her husband had Medicare supplement policies through a group policy from AARP. Respondent did not review that policy. On or about April 20, 1988, Respondent completed insurance applications for Mr. and Mrs. Klingensmith for nursing home insurance policies. The application form provided, in part, the following questions: Is the insurance being applied for intended to replace any accident or sickness insurance, health service or health maintenance contract? * * * Complete the following for each person named above who now has insurance in force or pending: * * * Does any person above have or ever had any of the following: (Underline condition) A. Tumor, cancer, malignancy or growth of any kind? * * * g. Disease of the rectum or intestine, stomach, kidney, prostate, urinary bladder, liver, gall bladder? * * * 7.a. Has any person named above consulted or been treated by any physician or practitioner in the last five years? b. Has any person named above been confined in a hospital in the last five years? * * * 9.a. List conditions for which medication has been taken or doctor consulted within the past six months: * * * 10. If any part of questions 6 or 7 was answered YES give details--otherwise--answer question by stating "NONE" On the application form for Mr. Klingensmith, Respondent wrote the following responses: as to question 4, "No" was entered; as to question 5, "NONE" was entered; as to 6.a. "Yes" was checked; as to questions 7a. and 7b., "Yes" was checked; as to question 9, only medications not conditions were listed; and under question 10, the remaining effects were indicated as "Good Health." The answers given by Respondent to questions 5, 9, and 10 were incorrect and contrary to the information Mrs. Klingensmith had given Respondent. Mrs. Klingensmith signed the application for her husband. On Mrs. Klingensmith's application form completed by Respondent on April 20, 1988, the answer to question 5 was incorrect and contrary to the information Mrs. Klingensmith had given Respondent. On or about May 17, 1988, Respondent returned to the Klingensmith home and completed an application for Mr. Klingensmith for an extended care insurance policy. The application for that policy was identical to the one described above. Respondent completed the form and gave the same responses that are indicated above. Respondent knew that Mr. Klingensmith had the National States policy from April, 1988, and he failed to include that information on the application. Further, since Mr. Klingensmith remained bedridden, the response of "good health" to question 10 continued to be false and contrary to the information supplied by Mrs. Klingensmith. On August 17, 1988, Respondent went to the Klingensmith home and completed two applications for Mr. 5 Klingensmith: one for a Medicare supplement insurance policy and one for a hospital confinement indemnity insurance policy; both to be issued by National States. On September 14, 1988, Respondent went to the Klingensmith home and completed an application for Mr. Klingensmith to receive a medical/surgical insurance policy from National States. That application did not disclose any of the prior policies sold by Respondent, was again signed by Mrs. Klingensmith (her husband continued to be gravely ill), and falsely stated that Mr. Klingensmith was in good health. At all times material to the sales of the five policies described above for Mr. Klingensmith, Respondent knew or should have known that Mr. Klingensmith was terminally ill. Respondent either did not report the information given by Mrs. Klingensmith or chose not to inquire further based upon the answers she gave him. Mr. Klingensmith died, at home, in October, 1988. In connection with the Klingensmith policies Respondent was required to complete a certification form pursuant to Rule 4-46.004, Florida Administrative Code. That form is to be signed by the insurance applicant. Without Mrs. Klingensmith's prior consent or knowledge, Respondent executed certification forms on behalf of the Klingensmiths. In August, 1988, Mrs. Klingensmith asked Respondent to examine a cancer insurance policy issued by Bankers Fidelity Life Insurance Company covering the Klingensmiths. Respondent failed to disclose that policy on the applications completed in August and September, 1988. Further, Respondent failed to accurately disclose the benefits of that policy to Mrs. Klingensmith. The cancer policy would provide additional benefits which the Respondent should have known could be helpful since Mr. Klingensmith had been diagnosed with a malignant tumor. In September, 1988, Respondent sold a medical/surgical policy to Charles Areni. Subsequently, in April, 1989, Mr. Areni asked Respondent to assist him in the completion of claims forms. Respondent went to Mr. Areni's home, helped him complete the claims forms, and sold him a National States Medicare supplement insurance policy. At that time, Respondent knew Mr. Areni had been hospitalized since a cancerous prostate problem had reoccurred, and that Mr. Areni was taking medication for pain associated with his most recent surgery. The application completed by Respondent for Mr. Areni was the same form described in paragraph 6 above. Respondent submitted the following false responses to the questions posed by that questionnaire: in response to question 5, "None" was entered; to question 6a. Respondent checked "No" when he knew or should have known (based upon Mr. Areni's answers) that the prostate condition was cancerous; and "None" to question 9. Further, Respondent provided that Mr. Areni was in good health in response to question 10. At that time Mr. Areni was not in good health, and, while his prognosis was uncertain, it was apparent that he was in poor health. On or about January 19, 1989, Respondent went to the home of Ruth Stone in Fort Pierce, Florida. That visit was 7 in response to Mrs. Stone's mailed in lead card. At that time, Mrs. Stone was insured by American Life Assurance Corporation with whom she had a Medicare supplement policy. Mrs. Stone told Respondent about her policy but did not show it to him. Without reviewing the existing policy, Respondent advised Mrs. Stone that a policy he could offer her through National States would be a better buy. Based upon Respondent's representations, Mrs. Stone elected to apply for a policy through Respondent. To that end, Respondent completed the application described in paragraph 6 for Mrs. Stone. Respondent answered question 5 incorrectly since he knew that Mrs. Stone had a current policy. Later, after speaking with her other agent, Mrs. Stone cancelled the National States policy by stopping payment on her check. She later gave a sworn statement to the Department. After Respondent found out about Mrs. Stone's complaint to the Department, he asked her to change her statement since he might lose his job. On or about February 17, 1988, Respondent went to the home of Edward and Julia Whitham in Fort Pierce, Florida. Respondent sold the Whithams Medicare supplement policies to be issued by National States. The policies sold to the Whithams did not cover dental or optical services. At the time they purchased the policies, the Whithams were under the impression that optical and dental services were covered. Respondent signed the certifications required by Rule 4-46.004, Florida Administrative Code, for the Whithams without their prior consent or approval.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Insurance, Office of the Treasurer enter a final order revoking the Respondent's health care insurance license. DONE and ENTERED this 7th day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 7th day of August, 1990. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Nancy S. Isenberg and Dennis Silverman Department of Insurance Division of Legal Services Room 412, Larson Building Tallahassee, Florida 32399-0300 Kelli Hanley Crabb Battaglia, Ross, Hastings & Dicus, P.A. 980 Tyrone Boulevard St. Petersburg, Florida 3371014 APPENDIX TO CASE NO. 89-4986 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 35 are accepted. Paragraph 36 is rejected as irrelevant. Paragraph 37 is rejected as contrary to the weight of the evidence. Paragraph 38 is accepted. Paragraphs 39 through 48 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence. Paragraph 5 is rejected as contrary to the weight of the evidence. Paragraph 6 is accepted as to the fact that the Whithams purchased policies from Respondent; otherwise, rejected as irrelevant. Paragraph 7 is rejected as unsupported by the record. Paragraph 8 is accepted. With regard to paragraph 9, it is accepted that the Whithams asked that their policies be reinstated; otherwise rejected as unsupported by the record or irrelevant. Paragraph 10 is rejected as unsupported by the record. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 12 is accepted but is irrelevant. Paragraph 13 is accepted but is irrelevant. Paragraph 14 is accepted as to their complaint against the company but is irrelevant. The first sentence of paragraph 15 is accepted. The remainder of the paragraph is accepted with the notation that Mrs. Stone did advise Respondent that she had a policy in effect. She was shopping for a cheaper policy that offered as good or better benefits. Respondent made no effort to review Mrs. Stone's policy. Paragraph 16 is rejected as irrelevant. With regard to paragraph 17, it is accepted that based upon Respondent's representations, Mrs. Stone purchased a national States policy; otherwise rejected as irrelevant. Paragraph 18 is rejected as contrary to the weight of the evidence. With regard to paragraph 19, it is accepted that Mrs. Stone spoke with her agent and decided to stop payment on the check to National States; otherwise rejected as irrelevant. Paragraph 20 is not supported by the record and is, therefore, rejected. Paragraph 21 is rejected as-irrelevant. Paragraph 22 is accepted. With regard to paragraph 23, it is accepted that the application disclosed a prostate condition; otherwise rejected as not supported by the record. Paragraph 24 is accepted. Paragraph 25 is accepted. Paragraph 26 is accepted with the notation that Respondent did not complete the application with all of the pertinent information that Mr. Areni gave him; consequently, Respondent was attempting to have the policy issued when he knew or should have known that Mr. Areni's cancer would preclude him from being eligible. Paragraph 27 is rejected as contrary to the weight of the evidence; see the notation to paragraph 26 above. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted. The first sentence of paragraph 32 is accepted. With regard to the second sentence, it is accepted that Respondent was not supposed to write insurance for cancer patients, however, the overwhelming evidence in this case established that Respondent did just that. The first sentence of paragraph 33 is accepted. It is further accepted that Mrs. Klingensmith executed the applications on behalf of herself and her husband; otherwise the paragraph is rejected as either unsupported by the record or contrary to the weight of the evidence. The first sentence of paragraph 34 is accepted. The remainder is rejected as contrary to the weight of the evidence since the comment was only made in relation to Mr. Klingensmith's day-to-day behavior. He undoubtedly had some good days relative to his more severe days. It is further concluded that Mr. Klingensmith was never seen by any visiting insurance person other than as a bedridden person. Mr. Bessimer's comment that Mr. Klingensmith could have been napping was not credible in light of the total circumstances known to Respondent. Paragraph 35 is accepted but is irrelevant. The second sentence of paragraph 36 is accepted. With regard to the first sentence of that paragraph, it is rejected as contrary to the weight of the evidence. Mrs. Klingensmith's account of the conversation has been deemed more credible than the Respondent's. Paragraphs 37, 38, and the first sentence of paragraph 39 are accepted. With regard to the remainder of paragraph 39, it is rejected as contrary to the weight of the credible evidence. Paragraph 40 is accepted but is irrelevant.
Findings Of Fact Petitioner resigned from State Government on July 23, 1987. At the time of his resignation, Petitioner was covered under the Florida State Group Health Insurance Plan. His wife, who is a diabetic, was also covered under Petitioner's insurance. Upon termination Petitioner was eligible for continuation of coverage benefits under the federal COBRA Act. However, prior to receiving any notice of his COBRA rights, Petitioner elected to continue his State Employees' Insurance for two months from July 1, 1987 and then begin coverage under his new employer's insurance plan. 2/ Petitioner made advance payment on the 2 months additional coverage. The payments carried his State Employees' health insurance through September 1, 1987 when it was terminated. DOA notified Petitioner on August 27, 1987, of his right to elect continuation of coverage under the COBRA Act. This notice complied with the notice requirements under the COBRA Act. COBRA provides continued health insurance coverage for up to (18) months, after a covered employee leaves employment. However, coverage does not continue beyond the time the employee is covered under another group health plan. COBRA simply fills the gap between two different employers group health insurance plans so that an employee's group health insurance does not lapse while the employee changes jobs. Petitioner's new employer's health coverage began around September 1, 1987. After Petitioner had begun coverage under his new insurance plan, he discovered that his wife's preexisting diabetic condition would not be covered. However, no evidence was presented that Petitioner, within 60 days of September 1, 1987 requested the Division of State Employee's Insurance to continue his insurance coverage pursuant to COBRA. Moreover, Petitioner's COBRA rights terminated when he began his coverage under his new employer's health plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Petitioner's request for continuation of coverage under COBRA. DONE and ENTERED this 5th day of April, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1989.
The Issue The issue in the case is whether the Petitioner’s application for renewal of nursing home licensure should be approved.
Findings Of Fact The Petitioner is a licensed nursing home facility located at 8104 North Tuttle Avenue, Sarasota, Florida. AHCA is the state agency charged with responsibility for licensure and regulation of nursing home facilities in Florida. By application dated January 30, 2001, the Petitioner applied for renewal of the license for Life Care Center of Sarasota. According to the application, Life Care Center of Sarasota is a leased facility. Although the cover letter accompanying the application indicates that a surety bond was enclosed, the Petitioner did not include a surety bond. Florida law requires that an applicant for licensure of a nursing home operating in a leased facility must meet a bonding requirement. The law provides that the requirement may be met through other arrangements acceptable to AHCA. Currently, AHCA is requiring that operators of leased facilities must comply with the bond requirement. In an attempt to comply with the bond requirement, the Petitioner submitted an “Unconditional Guarantee of Payment” executed by the owner of the Petitioner’s parent company, Life Care Centers of America, Inc. By Notice of Intent dated April 6, 2001, AHCA informed the Petitioner that the licensure application would be denied. As grounds for the denial, the notice states that the denial is based on the failure to provide a “Leased Nursing Home Surety Bond for 30 months of coverage” pursuant to Section 400.179(5)(d) 3., Florida Statutes. The evidence supports the cited grounds for denial of the application. There is no evidence that the Petitioner is unable to obtain the surety bond. The Petitioner asserts that AHCA accepts Unconditional Guarantees of Payment from operators of nursing home facilities that are owned by the guarantor, and that such guarantees should be accepted from operators of nursing home facilities that are leased by the guarantor. The evidence fails to support the assertion. There is no credible evidence that AHCA has accepted Unconditional Guarantees of Payment from operators or nursing home facilities that are leased from a third party by the operator. The Petitioner asserts that some leases are actually financing mechanisms and that such leaseholders should be permitted to supply Unconditional Guarantees of Payment in lieu of complying with the bond requirement. The evidence in this case fails to establish that an Unconditional Guarantee of Payment should be accepted in lieu of complying with the bond requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order denying the application for licensure of Life Care Center of Sarasota based on the Petitioner’s failure to provide a lease bond as required by statute. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of September, 2001. COPIES FURNISHED: R. Bruce McKibben, Jr., Esquire R. Bruce McKibben, P.A. 1301 Miccosukee Road Post Office Box 1798 Tallahassee, Florida 32308 Richard A. Patterson, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3431 Tallahassee, Florida 32308-5403 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue in this case is whether Respondent, Charles Steven Lieberman, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on January 26, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. (2004).1 Respondent, Charles Steven Lieberman, is currently, and was at all times pertinent to this matter, licensed in Florida as a resident Life & Variable Annuity (2-14); Life, Health & Variable Annuity (2-15); Life (2-16); Life & Health (2-18); and Health (2-40) Agent. (Stipulated Facts). The Department has jurisdiction over Mr. Lieberman's licenses and appointments pursuant to Chapter 626, Florida Statutes. (Stipulated Facts) Mr. Lieberman's license identification number is A155409. (Stipulated Facts). Mr. Lieberman graduated from Columbia University. From 1974 through 1992, Mr. Lieberman worked as a trader initially on the floor of the Chicago Board of Options Exchange, and later, the Chicago Mercantile Exchange. Mr. Lieberman has held his insurance licenses for ten years. This is the first administrative complaint issued against him. Mr. Lieberman's Business. Mr. Lieberman, at all times pertinent, served as president of Charles Lieberman, Inc. (Stipulated Facts). Mr. Lieberman, at all times pertinent, was the designated primary agent, as defined in Section 626.592, Florida Statutes, of Charles Lieberman, Inc. (Stipulated Facts). Charles Lieberman, Inc., at all times pertinent, owned and did business as "National Medical Services" and "The Insurance Center." (Stipulated Facts). Mr. Lieberman's "Medical Benefits Plan"/"Medical Savings Plan." Mr. Lieberman offers customers who are seeking medical insurance a plan which he calls a "Medical Benefits Plan" or "Medical Savings Plan" (hereinafter referred to as the "Lieberman Medical Benefits Plan"). The Lieberman Medical Benefits Plan consists of the following components (hereinafter referred collectively as the "Plan Products"): A hospital and surgery expense payment policy (hereinafter referred to as the "Hospital Insurance Plan"); A Catastrophe Major Medical Insurance Plan (hereinafter referred to as the "Major Medical Insurance Plan"); and A discount card titled "The Chamber Card" (hereinafter referred to as the "Chamber Card"), with a "Limited Product Warranty." None of the Plan Products included insurance coverage for physician office visits, a fact which Mr. Lieberman was fully aware of. The Hospital Insurance Plan. The Hospital Insurance Plan provides coverage for hospital and surgical expenses. It does not provide coverage for physician office visits. The Hospital Insurance Plan is a medical insurance plan offered by United American Insurance Company (hereinafter referred to as "United American"). Mr. Lieberman is an agent for United American. Petitioner's Exhibit 64 is a copy of the hospital and surgery expense policy that constitutes the Hospital Insurance Plan sold by Mr. Lieberman. (Stipulated Facts). Petitioner's Exhibit 65 is a copy of the Schedule of Benefits for the Hospital Insurance Plan. (Stipulated Facts). The Major Medical Insurance Plan. The Major Medical Insurance Plan provides coverage for major medical expenses in excess of $25,000.00. It does not provide coverage for physician office visits. The Major Medical Insurance Plan is also a medical insurance plan. It is offered by United States Life Insurance Company (hereinafter referred to as "U.S. Life"). In order to purchase a Major Medical Insurance Plan, customers are required to join one of many organizations which purchase Major Medical Insurance Plans through Seabury & Smith2, an organization which administers the sale of health insurance for U.S. Life. Customers, once they join such an organization, are then required to purchase the Major Medical Insurance Plan through the organization they joined. Mr. Lieberman is not an agent for U.S. Life or affiliated with Seabury & Smith. He does not, therefore, sell Major Medical Insurance Plans. Nor does he receive any compensation if any of his customers purchase a Major Medical Insurance Plan. Mr. Lieberman does, however, recommend the purchase of a Major Medical Insurance Plan as part of the Lieberman Medical Benefits Plan. In order to facilitate the purchase, Mr. Lieberman has his customers join the "American Contract Bridge League."3 His customers then purchase a Major Medical Insurance Plan directly based upon their League membership. Petitioner's Exhibit 63 is a copy of the Major Medical Insurance Plan which by Mr. Lieberman recommended that his customers purchase. (Stipulated Facts). The Chamber Card. In an effort to provide some relief for cost of physician office visits, which was not covered by the Hospital Insurance Plan or the Major Medical Insurance Plan, Mr. Lieberman sold his customers the Chamber Card. The Chamber Card, which is not insurance (Stipulated Facts), is a card which entitles the holder thereof to a discount4 for various medical services, including physician office visits. In an effort to enhance the discounts from the Chamber Card available to Mr. Lieberman's customers, Mr. Lieberman also provided what he termed a "Limited Product Warranty" which he offered through Charles Lieberman, Inc., d/b/a National Medical Services. This Limited Product Warranty is also not insurance. Pursuant to Mr. Lieberman's Limited Product Warranty, Mr. Lieberman purportedly agreed to provide reimbursement of the cost of any physician office visit in excess of $15.00, an amount which he referred to as a "copay," which was not paid for by the Chamber Card. The additional discounts were dependant, however, on Mr. Lieberman's ability to negotiate a reduction in the fees incurred by his customers directly from the physician.5 In describing the Chamber Card and the Limited Product Warranty sold by Mr. Lieberman, he used the acronyms "PPO" and "PHCS," and terms like "copay" and "claims" normally associated with the insurance industry. Customer W.E. (Count I of the Administrative Complaint). Prior to September 12, 2002, W.E. spoke with Mr. Lieberman by telephone. She explained to him that she was interested in purchasing health insurance, and before she could explain what she meant in any detail, he informed her that he could provide any health insurance she wanted as long as she did not have high blood pressure, which she did not. On September 12, 2002, W.E. met with Mr. Lieberman (Stipulated Facts) at his home to discuss purchasing health-care insurance. She explained to Mr. Lieberman that she wanted a health insurance plan similar to what she had had before she recently moved to Florida and that she wanted a plan with minimum co-payments. She also indicated that she wanted a basic insurance plan until she was able to find employment where her health insurance would be provided for her. W.E. did not specifically tell Mr. Lieberman that she wanted insurance that covered physician office visits.6 Rather, she reasonably assumed that by telling Mr. Lieberman that she wanted to purchase "health insurance" that, as an insurance agent, he would understand that she wanted coverage for physician office visits. Mr. Lieberman, rather than providing the insurance coverage which he knew or should have known W.E. was seeking, coverage which included physician office visits, suggested that she purchase the Lieberman Medical Benefits Plan. While Mr. Lieberman attempted to give some limited explanation of his plan to W.E., based upon the manner in which he explained his plan at hearing, it is understandable that W.E. did not understand what she was purchasing, or, more specifically, that the plan, while including some health care coverage, did not include coverage for physician office visits. On September 12, 2002, Mr. Lieberman sold or arranged for the sale of the Plan Products, as more fully described in Findings of Fact 9 through 25, to W.E.: W.E. signed an application for membership in the American Contract Bridge League (Stipulated Facts); W.E. wrote a check for her membership in the American Contract Bridge League (Stipulated Facts); W.E. signed an application and wrote checks for the Chamber Card and a United American Hospital Insurance Plan (Stipulated Facts); and W.E. signed an application for a Major Medical Insurance Plan from U.S. Life and wrote a check to Seabury & Smith. (Stipulated Facts). Mr. Lieberman knew or should have known that he was selling W.E. a product which she was not interested in purchasing and that he was not providing her with a significant part of the insurance coverage she was interested in purchasing, coverage of physician office visits. While Mr. Lieberman gave some limited explanation of what the Chamber Card was, he did not fully explain to W.E. that it was not an insurance program, plan, or policy; that it would not pay for physician office visits; or that it only provided some unspecified discount on the cost of physician office visits. W.E. did not understand what she was purchasing. She even believed incorrectly that she had not been provided any insurance at all by Mr. Lieberman. While this incorrect assumption was based in part upon comments she perceived were made by a Department investigator, her comments show that she was unknowledgeable about insurance and, therefore, placed her full reliance on upon Mr. Lieberman. Even though W.E. issued separate checks made payable to "A.C.B.L." (the American Contract Bridge League), Seabury & Smith (for the Major Medical Insurance Plan), United American (for the Hospital Insurance Plan), and National Medical Services (for the Chamber Card); signed an Acknowledgement & Disclaimer and an Acknowledgement & Disclosures (both of which are quoted, infra, in Finding of Fact 35); and signed a document titled "Medical Benefits Plan” which contained an acknowledgement (quoted, infra. In Finding of Fact 36), W.E., unlike Mr. Lieberman, did not understand that she was purchasing a product which she had not requested and did not want. The Acknowledgement & Disclaimer and Acknowledgement & Disclosures signed by W.E. provided the following: ACKNOWLEDGEMENT AND DISCLAIMER I understand that the US Life Catastrophic Insurance Policy is being purchased through the mail from Seabury & Smith (Group Insurance Plans), who are the brokers for that plan. Although I am purchasing other insurance from Charles Lieberman, I realize that Mr. Lieberman is in no way representing Seabury & Smith or US Life and that he is only making me aware that this plan is available. I acknowledge that it is my sole responsibility to review this plan and its features to determine suitability once the policy is received. Insured Date ACKNOWLEDGEMENT AND DISCLOSURES I hereby acknowledge that I am purchasing insurance that covers approximately 75% of the first $10,000 in the hospital then covers 100% hospitalization above $25,000. Although my PHCS PPO Access/Medical Savings Card (which is not insurance) will, in most cases, reduce this potential liability; through negotiated savings, it is not guaranteed to eliminate it in it [sic] entirety. INSURED DATE The foregoing Acknowledgement & Disclaimer and the Acknowledgement & Disclosures are misleading at best, and deceiving at worst. While the Acknowledgement & Disclosures includes the language "which is not insurance," that language is included after the terms "PHCS PPO Access/Medical Savings Card," terms which are not clearly identified or explained and are, along with other terminology used in the Disclosures (i.e., "PPO" and "copay") reasonably associated with health-care insurance. More importantly, the Acknowledgement & Disclaimer and the Acknowledgement & Disclosures do not explain that physician office visits are not being provided through health care insurance. Finally, W.E. was not given an opportunity by Mr. Lieberman to read the Acknowledgement & Disclaimer, the Acknowledgement & Disclosures, or any other documents shown to her by Mr. Lieberman. He simply placed most of the documents which she had to sign in front of her with only the part she was required to sign visible and told her to sign them, which she did. The following acknowledgment was also contained in a document titled "Medical Benefits Plan" which W.E. signed: By signing below, I agree that all information provided above is complete, accurate, and truthful. I recognize that because of the high cost of health insurance, National Medical Savings, plan administrator, has attempted to put together a "medical savings/benefit plan" which allows clients to purchase reasonably priced hospitalization insurance from well known a- rated insurance companies and combine it with a product which is not insurance to better suit the clients' needs. I understand that anything associated with the PPO repricing or copay rebates is part of the "medical savings plan" and is in no way to be considered as insurance, but rather as an affordable alternative to satisfy the need to reduce medical costs. Like the Acknowledgments quoted in Finding of Fact 35, this acknowledgement, which appears after a paragraph titled "Pre- Authorized Payment Plan" on the form, is misleading. It is not clear that it is referring to the Chamber Card, it contains terms normally associated with insurance coverage in spite of the disclaimer, and Mr. Lieberman gave W.E. no reasonable opportunity to read the disclaimer before having her sign it. After enrolling W.E. in the Lieberman Medical Benefits Plan, Mr. Lieberman mailed all the documents which W.E. had signed on September 12, 2002, to her. This was her first realistic opportunity to read the documents. After receiving the documents concerning the Lieberman Medical Benefits Plan, W.E. cancelled all of the Plan Products. Although there was some language in the Acknowledgement and Disclosures and the form titled "Medical Benefits Plan" signed by W.E. indicating that some part of the Lieberman Medical Benefits Plan was not insurance, due to the ambiguity of the language of the Acknowledgement and the disclaimer, the lack of opportunity that W.E. had to read the documents, the other language normally associated with insurance used in the documents, and the lack of coherent explanation provided by Mr. Lieberman, it is found that, as to W.E., Mr. Lieberman: Did not inform her that the Chamber Card was not an insurance program, plan, or policy; "Portrayed" the Chamber Card as an insurance program, plan, or policy; and Sold her products, none of which provided insurance coverage for the cost of physician office visits. Customer A.H. (Count II of the Administrative Complaint). Prior to April 11, 2003, Mr. Lieberman contacted and spoke to A.H. by telephone. A.H. told Mr. Lieberman that she was interested in purchasing health insurance, including insurance covering physician office visits, with co-pay, and hospitalization expenses, with a deductible. On April 11, 2003, A.H. met with Mr. Lieberman (Stipulated Facts) at his home to discuss purchasing health-care insurance. She again explained to Mr. Lieberman that she was interested in a policy that covered physician office visits, with a co-pay, and hospitalization expenses, with a deductible. Mr. Lieberman, rather than providing insurance coverage which he knew or should have known A.H. was seeking, coverage which included physician office visits, suggested that she purchase the Lieberman Medical Benefits Plan. While Mr. Lieberman attempted to give some limited explanation of his plan to A.H., based upon the manner in which he explained his plan at hearing, it is understandable that A.H. did not understand what she was purchasing, or, more specifically, that the plan, while including some health care coverage, did not include coverage for physician office visits. On April 11, 2003, Mr. Lieberman sold or arranged for the sale of the same Plan Products to A.H. that he had sold to W.E., described in Finding of Fact 30, supra. (Stipulated Facts). Mr. Lieberman knew or should have known that he was selling A.H. a product which she was not interested in purchasing and that he was not providing her with a significant part of the insurance coverage she was interested in purchasing, coverage of physician office visits. While Mr. Lieberman gave some limited explanation of what the Chamber Card was, he did not fully explain to A.H. that it was not an insurance program, plan, or policy; that it would not pay for physician office visits; or that it only provided some unspecified discount on the cost of physician office visits. Like W.E., A.H. signed the Acknowledgment and Disclaimer and the Acknowledgement and Disclosures quoted, supra, in Finding of Fact 35, and the disclaimer quoted, supra, in Finding of Fact 36. The Acknowledgements and the disclaimer were deficient for the same reasons described in Findings of Fact 35 and 36. Like W.E., even though A.H. issued separate checks made payable to "A.C.B.L." (the American Contract Bridge League), Seabury & Smith (for the Major Medical Insurance Plan), United American (for the Hospital Insurance Plan), and National Medical Services (for the Chamber Card); signed the Acknowledgement & Disclaimer and an Acknowledgement & Disclosures; and signed the disclaimer contained in a form titled "Medical Benefits Plan," A.H., unlike Mr. Lieberman, did not understand that she was purchasing a product which she had not requested and did not want. Having explained to Mr. Lieberman that she wanted a policy that covered physician office visits and not having been told that was not what she was purchasing, she simply relied upon Mr. Lieberman. After enrolling A.H. in the Lieberman Medical Benefits Plan, Mr. Lieberman mailed all the documents which A.H. had signed on April 11, 2003, to her. Some time after receiving the documents concerning the Lieberman Medical Benefits Plan, A.H. cancelled all of the Plan Products. Although there was some language in the Acknowledgement and Disclosures and the form titled "Medical Benefits Plan" signed by A.H. indicating that some part of the Lieberman Medical Benefits Plan was not insurance, due to the ambiguity of the language of the Acknowledgement and the Disclaimer, the other language normally associated with insurance used in the documents, and the lack of coherent explanation provided by Mr. Lieberman, it is found that, as to A.H., Mr. Lieberman: Did not inform her that the Chamber Card was not an insurance program, plan, or policy; "Portrayed" the Chamber Card as an insurance program, plan, or policy; and Sold her products, none of which provided insurance coverage for the cost of physician office visits. Customer R.G. (Count III of the Administrative Complaint). R.G. did not testify at the final hearing. The factual allegations of Count III of the Administrative Complaint were not proved. Customer J.E. (Count IV of the Administrative Complaint). Prior to January 17, 2003, J.E. spoke with Mr. Lieberman by telephone. J.E. explained to Mr. Lieberman that he was interested in purchasing health insurance to replace the Blue Cross/Blue Shield health-care insurance he currently had. On January 17, 2003, J.E. met with Mr. Lieberman (Stipulated Facts) at his home to discuss purchasing health-care insurance. He explained to Mr. Lieberman that he was interested in a policy to replace his current policy with Blue Cross/Blue Shield. J.E. specifically requested a policy that covered physician office visits. Mr. Lieberman, rather than providing insurance coverage which he knew or should have known J.E. was seeking, coverage which included physician office visits, suggested that he purchase the Lieberman Medical Benefits Plan. While Mr. Lieberman attempted to give some limited explanation of his plan to J.E., based upon the manner in which he explained his plan at hearing, it is understandable that J.E. did not understand what he was purchasing, or, more specifically, that the plan, while including some health care coverage, did not include coverage for physician office visits. On January 17, 2003, Mr. Lieberman sold or arranged for the sale to J.E. of the same Plan Products he sold to W.E. described in Finding of Fact 30, supra. (Stipulated Facts). Mr. Lieberman knew or should have known that he was selling J.E. a product which he was not interested in purchasing and that he was not providing him with a significant part of the insurance coverage he was interested in purchasing, coverage for physician office visits. While Mr. Lieberman gave some limited explanation of what the Chamber Card was, he did not fully explain to J.E. that it was not an insurance program, plan, or policy; that it would not pay for physician office visits; or that it only provided some unspecified discount on the costs of physician office visits. Like W.E. and A.H., J.E. also signed the Acknowledgment and Disclaimer and the Acknowledgement and Disclosures quoted, supra, in Finding of Fact 35, and the disclaimer quoted, supra, in Finding of Fact 36. The Acknowledgements and the disclaimer were deficient for the same reasons described in Findings of Fact 35 and 36. Like W.E. and A.H., even though J.E.. issued separate checks made payable to "A.C.B.L." (the American Contract Bridge League), Seabury & Smith (for the Major Medical Insurance Plan), United American (for the Hospital Insurance Plan), and National Medical Services (for the Chamber Card); signed the Acknowledgement & Disclaimer and an Acknowledgement & Disclosures; and signed the disclaimer contained in a form titled "Medical Benefits Plan," J.E., unlike Mr. Lieberman, did not understand that he was purchasing a product which he had not requested and did not want. Having explained to Mr. Lieberman that he wanted a policy that covered physician office visits and not having been told that was not what he was purchasing, he simply relied upon Mr. Lieberman. After enrolling J.E. in the Lieberman Medical Benefits Plan, Mr. Lieberman mailed all the documents which J.E. had signed on January 17, 2003, to him. Some time after receiving the documents concerning the Lieberman Medical Benefits Plan, J.E. cancelled all of the Plan Products. Although there was some language in the Acknowledgement and Disclosures and the form titled "Medical Benefits Plan" signed by J.E. indicating that some part of the Lieberman Medical Benefits Plan was not insurance, due to the ambiguity of the language of the Acknowledgement and the disclaimer, the lack of opportunity to read the documents before he signed them, the other language normally associated with insurance used in the documents, and the lack of coherent explanation provided by Mr. Lieberman, it is found that, as to J.E., Mr. Lieberman: Did not inform him that the Chamber Card was not an insurance program, plan, or policy; "Portrayed" the Chamber Card as an insurance program, plan, or policy; and Sold him products, none of which provided insurance coverage for the cost of physician office visits. The Administrative Complaint. On January 26, 2004, the Department issued a four- count Administrative Complaint against Mr. Lieberman. (Stipulated Facts).7 The Administrative Complaint contains four counts, one each for Mr. Lieberman's association with W.E. (Count I), A.H. (Count II), R.G. (Count III), and J.E. (Count IV). The Administrative Complaint alleges that Mr. Lieberman's conduct with all four individuals violated Section 626.611(6), (7), and (8), Florida Statutes, and Section 626.621(2), Florida Statutes. The Administrative Complaint also alleges that, as to A.H., Mr. Lieberman violated Section 626.621(6), Florida Statutes. In support of the alleged statutory violations, the Department alleged, in part, that with regard to all four individuals: Mr. Lieberman "did not inform [his customers] that The Chamber Card was not an insurance program, plan or policy"; Mr. Liberman "portrayed The Chamber Card as an insurance program, plan or policy"; and That "[n]one of the products you, CHARLES STEVEN LIEBERMAN, sold to [W.E., A.H., R.G., and J.E.] provide insurance coverage for the cost of doctors' visits."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Charles Steven Lieberman violated Sections 626.611(7) and (8), Florida Statutes, as alleged in Counts I, II, and IV of the Administrative Code; dismissing Count III of the Administrative Code; and suspending his licenses for a period of 12 months from the date of the final order. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing insurance agents of all types, regulating the licensure status and enforcing the practice standards of licensed agents within the ambit of the powers granted it by the Legislature in Chapter 26, Florida Statutes. The Respondent at times pertinent hereto was a licensed health insurance agent in the State of Florida licensed and regulated as to her insurance agency practice by the Petitioner in accordance with the provisions of Chapter 626, Florida Statutes, and related rules. The Respondent, Ms. Blair, at times pertinent hereto was employed as a licensed health insurance agent by National Health Agency Associates, Inc. On June 25, 1985, Ms. Blair went to the home of Marguerite J. Kozloski in Gainesville, Florida, ostensibly for the purpose of delivering a United General Life Insurance Company hospital indemnity policy (number 0981039). That policy had been sold to Ms. Kozloski by a former National Health Agency Associates, Inc. agent, Mr. Donald Johnson. In the course of meeting with Ms. Kozloski, Ms. Blair informed her that she did not really need the particular policy that the Respondent had come to deliver (policy number 0979258) which had previously been sold to her by agent Johnson. Instead, the Respondent indicated to Ms. Kozloski that she really needed a different health insurance policy or program and took a new application for that insurance from Ms. Kozloski, a different policy. Upon taking the application for the new policy which she was selling to Ms. Kozloski, the Respondent collected Ms. Kozloski's check payable to "National Health Agency" in the amount of $781. That check represented the initial annual premium payment for the policy the Respondent was selling to Ms. Kozloski. Upon concluding this arrangement, Ms. Blair informed Ms. Kozloski that she would have policy number 0979258 and number 0981039 cancelled (the policies sold to Ms. Kozloski by agent Johnson) and would have the full premiums for those policies refunded to Ms. Kozloski. Later that same day the Respondent returned to her office and attempted to submit the application for the policy she sold to Ms. Kozloski to the insurer. Upon attempting to submit the application to the insurer, she was informed by an official of National Health Agency Associates, Inc. that the application could not be submitted to the insurer because it duplicated coverage on Ms. Kozloski. After being informed that the application would not be accepted, the Respondent filled out and executed, without Ms. Kozloski's knowledge or consent, two applications for supplemental medical-surgical expense insurance to be issued by the insurer, Atlantic American Life Insurance Company. She forged Ms. Kozloski's signature on these applications. The Respondent also indicated on these applications certain representations including that Ms. Kozloski did not have existing coverage and that the applied-for policy was not intended to replace existing insurance. These representations were false and the Respondent knew at the time of making them that they were false. She was also aware that in forging Ms. Kozloski's signature on the applications that Ms. Kozloski had no knowledge and had not consented to her placing her name on the applications for insurance, nor consented to the alternative applications being filled out and submitted. Ms. Blair never returned any refund or return premium to which they were entitled to the Kozloskis. She engaged in this scheme to seek to have the policies originally sold by Donald Johnson cancelled and to have the policies she attempted to sell to the Kozloskis replace the outstanding coverage in order for her to obtain the sales commissions attributable to them. The second "Kozloski application" was executed and forged by the Respondent when she learned from the insurer, (on July 8, 1985), that a second application to Atlantic American Life Insurance Company would be necessary to obtain the coverage requested in the first "replacement application" which had been completed by the Respondent and forged on June 25. The Respondent again falsely represented on that application that Ms. Kozloski had no existing or pending applications for Medicare supplement, hospital, medical or surgical insurance although the Respondent knew that to be a false representation. The Respondent also falsely represented, as to that second application, that the policy applied for would not replace any accident or sickness insurance presently applied for or already in force, although she knew that to be a false statement. Further, the Respondent failed to request that the original United General Life Insurance Company policy number 0979258 originally sold by Donald Johnson, be cancelled despite her representation to Ms. Kozloski that she would make such a request, which event would have entitled the policy holder to a refund of premium, which Ms. Kozloski never received. On April 5, 1985, the Respondent went to the home of George A. and Jewel C. Terwilliger in High Springs, Florida, for the purpose of selling Ms. Terwilliger a nursing home care insurance policy. On that occasion, Ms. Terwilliger informed the Respondent that she could not afford to buy more insurance and that her husband refused to pay for any more insurance. The Respondent, after discussing the matter with the Terwilligers, nevertheless obtained an unsigned check from George A. Terwilliger (check number 1314) and persuaded Ms. Terwilliger to sign an application for insurance. Thereafter, without the Terwilligers' knowledge or consent, the Respondent forged George A. Terwilliger's signature on that check and made the check out in the amount of $678. The Respondent thereafter submitted the check, together with Jewel C. Terwilliger's application, to National Health Agency Associates, Inc. The Respondent engaged in this scheme and transaction for the purpose of monetary benefit in the form of a sales commission she expected to earn for selling the Terwilligers the insurance policy based upon her misrepresentations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a Final Order be entered by the State of Florida, Department of Insurance and Treasurer revoking the Respondent's licensure. DONE and ORDERED this 7th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of October, 1987 COPIES FURNISHED: Wilbur W. Anderson, Esquire Richard E. Turner, Esquire Office of Legal Services Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Theresa Gerarda Blair 4390 Northeast Second Court Ocala, Florida 32670 Honorable William Gunter Commissioner Department of Insurance and Treasury The Capitol, Plaza Level Tallahassee, Florida 32399-0300
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 =================================================================
Findings Of Fact At all times material to this proceeding, the Respondent was eligible for licensure and/or licensed as a Life and Health Insurance Agent, Fraternal Benefit Insurance Agent, Health Insurance Agent, and General Lines Insurance Agent. At all times material to this proceeding, the Respondent was associated with, and conducted insurance transactions in the name of, Consolidated Insurance Associates, Inc., (CIAI) of Largo, Florida. The evidence did not establish whether the Respondent was an officer, director or shareholder of CIAI or otherwise was able to control the business decisions of CIAI. Immediately prior to September of 1983, Thomas Canavan, the business manager for NBCS Partnership, was introduced to the Respondent by one Jerry McCall of State Farm Insurance. NBCS was a partnership of doctors who owned and operated abortion clinics. In the summer of 1983, one of its five clinics was destroyed by arson. Because of the arson and perceived threat of more arson by anti-abortion militants, State Farm gave notice that it would not renew NBCS' property and casualty insurance policy when it expired in September, 1983. McCall introduced Canavan to the Respondent and recommended the Respondent as an insurance agent who could handle the insurance needs of the NBCS Partnership. At the time of the introduction, the Respondent was introduced to Canavan as Jack Jaar of Consolidated Insurance Associates, Inc. At least one other licensee, Shirley Cramer, also was associated with CIAI at the time. In September of 1983, Canavan, on behalf of NBCS, purchased a Home Insurance Company policy (No. BOS-P 247002) through the Respondent. In August of 1984, Canavan applied for and obtained renewal of the insurance policy through the Respondent and, as part of that transaction, provided a check, in payment of the premium ($2,526.00) due, to the Respondent. On or about March 13, 1985, The Home Insurance Company mailed a Notice of Cancellation of the policy to Canavan, effective April 16, 1985. Canavan received the Notice of Cancellation near the end of March and immediately telephoned the Respondent. During the initial telephone conversation between Canavan and the Respondent, Canavan told the Respondent that it was imperative that he have insurance coverage on the NBCS properties, and he requested that the Respondent obtain insurance coverage on the properties. During that initial telephone conversation, the Respondent indicated that he would get busy and attempt to secure insurance coverage for the NBCS properties. During the initial telephone conversation, the Respondent never stated or indicated in any manner that he intended to charge Canavan or NBCS a fee for his services or expenses or out-of-pocket costs incurred in attempting to secure insurance coverage. At the time of the initial telephone conversation between Canavan and the Respondent, Canavan never expected, based upon his prior experiences with and knowledge of insurance agents, to compensate Respondent or CIAI for obtaining insurance coverage on the NBCS properties, other than by paying a premium for the policy and thereby enabling the Respondent and CIAI to earn a commission from the insurer. At no time during that initial telephone conversation did Thomas Canavan agree to compensate the Respondent or CIAI for services rendered or for expenses or out-of-pocket costs incurred in attempting to obtain insurance coverage for the NBCS properties. After the aforementioned initial telephone conversation, Canavan spoke with the Respondent by telephone eight to ten times. At no time during those telephone calls did Respondent state to Canavan, or indicate in any manner, that he intended to charge Canavan or NBCS a fee for his services or expenses or out- of-pocket costs incurred in attempting to secure insurance coverage. At no time during those telephone calls did Canavan agree to compensate the Respondent or CIAI for services or for expenses or out-of-pocket costs incurred in attempting to obtain insurance coverage for the NBCS properties. At some point during those eight to ten telephone calls, the Respondent indicated he was doing everything he could to secure insurance coverage and that he intended to call the Insurance Commissioner's office for assistance in obtaining insurance coverage on the NBCS properties, specifically by getting the cancelled Home Insurance Company policy reinstated. On April 16, 1985, The Home Insurance Company cancelled the policy of insurance (No. BOS-P247002). On April 19, 1985, Mr. William Scisiani, Assistant Vice President and General Manager of The Home Insurance Company, in charge of their Orlando office, received a telephone inquiry from the State of Florida, Department of Insurance, concerning the cancellation of the policy in question. Scisiani obtained the policy file, reviewed it, determined that there was no basis for the cancellation, and instructed the underwriter to reinstate the policy. The policy was reinstated on April 26, 1985, with an effective date of April 16, 1985. No inquiries were received at The Home Insurance Company Orlando office concerning the policy, its cancellation, or reinstatement except for the one inquiry from the Department of Insurance. On the date Canavan received the reinstatement notice, he contacted the Respondent. During that conversation, they discussed securing insurance coverage to take effect after the expiration of the reinstated policy. The Respondent did not state or indicate in any manner that he intended to charge Canavan or NBCS a fee for his services or expenses or out-of-pocket costs incurred in attempting to secure insurance coverage through the expiration date, and Canavan did not agree or indicate that he would compensate the Respondent or CIAI. On or about May 1, 1985, Canavan received a bill for services and expenses in the amount of $1,867 and a letter from the Respondent. In the letter, the Respondent indicated that the bill concerned expenses "incurred in securing new coverages" for NBCS. In the next sentence of the letter, Jaar stated that the cancelled Home Insurance policy had been reinstated. In fact, no new coverages" had been obtained. Up until the date Canavan received the bill and letter from the Respondent, Canavan was unaware that the Respondent intended to charge him for his services and expenses. At the time Canavan received the bill and letter from the Respondent, he knew that he would need insurance again in four months and was counting on the Respondent to obtain coverage for him. Canavan was extremely concerned about maintaining insurance coverage on the NBCS properties because of the previous losses due to arson. Canavan was relying on the Respondent to obtain insurance coverage for him effective on the date the reinstated policy would expire. Canavan did not know anything about insurance or how it works as far as securing a policy or obtaining reinstatement of a policy. He considered that to be the Respondent's job. As of the expiration of the reinstated policy, the Respondent had not secured any new insurance coverages for the NBCS properties. Other than the bill itself, and accompanying letter, and statements in Jaar's September 15, 1987, letter to Adamo, no evidence was presented that the Respondent incurred the expenses referred to in the bill or devoted the time referred to in the bill. Upon receipt of the bill and the letter from the Respondent, Canavan executed a check payable to CIAI for the total amount of the bill--$1867. For accounting purposes Canavan noted in the memo portion of the check "insurance charge" because the charge was related to insurance. Canavan delivered the check to the Respondent, and the check was negotiated by CIAI. Even though he was not expecting it, Canavan did not complain about the $1867 charge. He was afraid that complaining would jeopardize his chances of securing new coverages beginning in September, 1985--his primary concern at the time. Later in the summer, Canavan became disgruntled with CIAI for various reasons, including the $1867 charge, and, by August 28, 1985, complained to the Department at its Tampa office. By then, Jaar was no longer at CIAI, but Shirley Cramer still was. Some of Canavan's complaints concerned dealings with Cramer, and he mentioned her and Jaar by name.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Insurance Commissioner enter a final order finding the Respondent, Jacob Jack Jaar, guilty of violating Sections 626.9541(1)(o)1. and 626.621(6), Florida Statutes (1987), and fining him $500. RECOMMENDED this 6th day of December, 1988. J. LAWRENCE JOHNSTON 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 6th day of December, 1988.
The Issue Whether Campos' Petition for Termination of Restriction and Prohibition of the January 12, 1995, Final Order should be granted because Campos has demonstrated that he is rehabilitated, fit, and trustworthy to have those restrictions lifted.
Findings Of Fact In 1993, the Department’s predecessor, the Florida Department of Insurance (“DOI”) commenced an action against Mr. Campos based on allegations of misconduct while an officer and director of First Miami, then a DOI-licensed insurance company. As a result of that investigation, the DOI subsequently sought an order removing, restricting, or prohibiting Campos from participating in the affairs of Perry & Company ("Perry & Co."), then a DOI-licensed premium finance company, pursuant to Section 624.310, Florida Statutes. On January 12, 1995, the Florida Treasurer and Insurance Commissioner issued a Final Order ("Removal Order") removing Campos from the affairs of Perry & Co., and prohibiting him from thereafter participating in the affairs of any entity licensed under the Florida Insurance Code. The pertinent language of the Removal Order stated: . . .the Respondent shall forthwith CEASE any participation in the affairs of any entity licensed, as that term is defined in Section 120.52(9), Florida Statutes, under the Florida Insurance Code, and is PROHIBITED from engaging in such activities. (Emphasis added). * * * The Respondent is not eligible for reelection or appointment to any official position to any licensee in this state except upon the written consent of the Department. On February 29, 1996, the Department's Final Order was upheld by the First District Court of Appeal and became effective on March 18, 1996, upon the district court’s issuance of its mandate. 2001 Consent Order In 1996, Campos through his company AJC Consulting, Inc. ("AJC") executed and performed under an agreement with Perry & Co., providing consulting and data processing services. Perry & Co. was a premium finance company licensed by the DOI at all times up until about March 7, 2001. In 1998, Perry & Co. requested the Department's approval to change ownership and control of the company. During the application process, the Department discovered Campos had business activities with Perry & Co. On May 17, 1999, the Department issued its Final Order from an evidentiary hearing held February 18, 1999, pursuant to Section 628.4615(6), Florida Statutes (1999), approving the acquisition of shares of Perry & Co. by Jack Perry contingent upon the issuance of a Consent Order that prohibited Campos from participating in the affairs of Perry & Co. or exercising control over Perry & Co. The Consent Order (“2001 Consent Order”) dated March 7, 2001, was issued requiring Perry & Co. to surrender its Florida license. It further stated that pursuant to the 1995 Final Order, Campos “shall not in any way be involved in the provision of any such administrative services unless authorized to do so by subsequent Order of the Department.” From 1995 until present Alex Campos was president and co-owner of PC General Agency, Inc. ("PC General"). Since then, he has engaged in regulated business throughout the United States and has been licensed in several capacities in other jurisdictions. Kenneth I. Tobey, Inc. Kenneth I Tobey, Inc. (“KIT”) operated in the states of Oregon and Washington as a licensed managing general agency. On October 18, 2005, KIT was issued a Florida certificate of licensure as a non-resident managing general agent, License No. P007036, by the Department. KIT's non-resident managing general agent license became valid upon issuance.1 While Campos was considering the purchase of KIT in 2006, he became aware of the fact that a Florida non-resident managing general agent license had been issued to KIT by the Department. KIT’s then president, Robert Redican, provided Campos a document identified as “license by state.” Approximately 11 states were listed with the license number and expiration date on the document. Corresponding to Florida was the following information: State License Number Expiration Date Notes Florida . P007036 N/A Managing General Agent Florida was the only state that had N/A under the Expiration Date column. The other states had dates except two had "perpetual." However, even with that knowledge, Campos failed to contact the Department to inquire about the status of the Florida license issued to KIT or ask the meaning of N/A. Campos testified unconvincingly that he understood the N/A meant not active. On April 30, 2006, Campos executed a "Company Management Agreement" between his company, PC General, and KIT. The agreement allowed PC General to manage and operate KIT's business “in the States of Oregon and Washington and in any other state to which the parties may mutually agree in writing.” With the agreement, he took over the management functions and administrative services, which included, but were not limited to: policy processing, customer service type calls, receipt type calls, and the cash processing type transactions of KIT. KIT maintained no office in Florida, conducted no insurance business in Florida, and was never appointed as a managing general agent for any carrier or licensee in the state of Florida. From April 30, 2006, until the date KIT filed for bankruptcy on October 18, 2006, PC General managed KIT, Inc.'s Washington and Oregon offices through the "Company Management Agreement." As trustee, Campos signed the October 16, 2006, Bankruptcy Petition as manager of, and on behalf of, KIT when it was filed. Soon thereafter, Petitioner was removed and replaced with an independent trustee since he also served in the capacity as a creditor. Campos neither requested nor obtained written consent from the Department to enter into and perform under the “Company Management Agreement" with KIT. Campos' relationship with KIT, a Florida licensee, allowed him to be a part of KIT's business affairs. GetAutoInsurance.com On April 13, 2005, Campos became the owner and president of GetAutoInsurance.com, LLC, a Georgia corporation. That entity is the registered owner of the domain name “GetAutoInsurance.com.” Campos maintained and operated the internet website. Petitioner entered into contracts with different companies throughout the country that provide insurance products. GetAutoInsurance.com partners with the companies that are licensed insurance agencies. The website provides technology that allows each partner to market and distribute insurance via the internet. The website works by a customer entering a zip code on the GetAutoInsurance.com World Wide Web address and then the customer clicks on the tab “Start Quote.” That customer receives a quote from a partner entity for an insurance product. Each partner compensates Campos a one-time $5.00 quote fee per customer. Florida customers are neither restricted from using the GetAutoInsurance.com website nor from getting quotes for insurance from Florida partner companies. On or about May 5, 2005, Campos executed a Marketing Master agreement between GetAutoInsurance.com and Esurance Inc. The terms of the agreement required Esurance pay Campos a one- time quote fee of $5.00 for each unique visitor quote.2 The Market Master Agreement neither restricted the kinds of insurance products Campos could be compensated for by soliciting on behalf of Esurance via GetAutoInsurance.com nor limited the customers to those outside of Florida. Under the general provision section, the Marketing Master Agreement provides: Esurance and [GetAutoInsurance.com LLC] recognize and agree that both Parties are operating independently and neither party shall be construed as an agent, partner or joint venture of the other Party. On or about October 9, 2008, Susan Jordan (“Jordan”) went to www.GetAutoinsurance.com. The GetAutoInsurance.com website did not describe policy benefits or coverage terms, quote premiums for insurance products or provide assistance to customers with completing insurance applications on its homepage. However, the homepage did state: * * * When you’re driven to buy auto insurance, or maybe just to make sure you’re getting the best deal, doesn’t it make sense to take the internet highway instead. . . . You have already taken the on ramp to get here and now you are really just a few minutes away from competitive quotes, no matter where you live. Getting quotes with GetAutoInsurance.com is the fast, easy and no cost way that you can do anytime or anywhere. The professionals at GetAutoInsurance.com have been meeting the Insurance needs of thousands of customers nationwide for years and we can do the same for you. And our service doesn't stop at the sale. We're here for you when you need to make a change to your policy or coverage. And, unlike others, if you have a claim, we're here to help there too. Don't know what to do-- don't know where to go for repairs-all you need to do is steer your computer to GetAutoInsurance.com and we'll introduce you to one of our network associates. And, if we can't do it online-we have a toll free number to call and we'll do our best to be helpful. Isn’t it time to take GetAutoInsurance.com for a test drive? It’s simple – enter your zip code above and we’ll show you the roadmap to low cost, quality auto insurance. While on the homepage, Jordan entered a Florida zip code and pressed start quote. She followed the prompts that appeared on each succeeding webpage and was able to complete an application for health insurance as a Florida resident. Jordan also obtained an online health insurance quote, which provided her an offer to enter into a given insurance contract at a given price, for that policy. Jordan did not provide a credit card number to complete the application and obtain a policy. Subsequently, Jordan received a United Healthcare letter by email dated October 9, 2008, with an application for health insurance. The letter stated: Thank you for choosing eHealthInsurance to assist you with your health insurance purchase. To date we have helped more than a million people obtain health insurance for themselves and their families, and we are very qualified and ready to assist you. Enclosed you will find the application you submitted on our website along with a checklist to help you complete your application. Please follow the checklist and return your application and any necessary payment to eHealthInsurance. Upon receipt, we will process your application and forward it to your chosen health insurance carrier for review. . . * * * You can log into our website (www.ehealthinsuranc.com) as a “Returning Customer” at any time to view the benefits you have chosen and also check the status of your application. . . The signature block of the letter read: Gary Matalucci Vice President of Customer Care eHealthInsurance Services Florida License No. L049392 The attached application identified the carrier as Golden Rule Insurance Company. Robert S. Hurley, eHealthInsurance Services, Inc., is listed as the “Licensed Broker,” Broker No. 2668300 and Florida Agent No. E133984. But for Jordan going the www.GetAutoInsurance.com website, she would not have had contact with the two Florida licensees. On May 11, 2006, Campos filed a Petition for Termination of Restriction and Prohibition of the Removal Order with the Department. He sought to be eligible for licensure under the Florida Insurance Code and/or affiliated with a Florida licensee. On April 2, 2008, by letter the Department denied Campos' petition based on its determination that Campos was not fit or trustworthy for licensure in Florida. The Department used numerous representative examples for the basis of its denial decision. On or about November 13, 2008, the undersigned granted the Department's Motion for Leave to Amend the Department's April 2, 2008, denial letter. The amendment provides the following additional ground for denial: Despite being removed, by the Department's January 12, 2995 Final Order, from the affairs of Petty & Company, a premium finance company at all relevant times licensed by the Florida Department of Insurance, you, Alex J. Campos, through execution of and performance under that certain Agreement between Perry & company and AJC Consulting, Inc., dated May 1, 1996, and accompanying addenda dated May 1, 1998, did participate in the affairs of Perry & Company, contrary to the prohibitions and restrictions of the Department's Final Order dated January 12, 1995. Prior to the hearing, the parties narrowed the issues to three as the grounds of denial of Campos’ petition: (1) Campos violated the 1995 Final Order by entering into a subsequent consulting agreement with Perry & Co., then a Florida licensed premium finance company; (2) Campos' involvement with KIT violated the 1995 Final Order because KIT had previously applied for and received a Florida managing general's agent's license; and (3) Campos through his ownership and involvement in GetAutoInsurance.com transacted insurance business from Florida residents without proper licensure. Campos' Character Campos is a self-educated business entrepreneur with expertise in computer information systems. He has been involved in the insurance industry since 1988. He recognizes the need for companies to be well-capitalized and to operate within its means. Since the 2001 Consent Order, Campos has focused his business predominately in Texas. He ran All American General Agency in Texas with Dick Perry and Jack Perry.3 All American General Agency is not active today. Campos also owns One World Mortgage Corporation that has a mortgage license in Florida. Campos testified that since the effective date of the 1995 Final Order, he believes he has acted within the law and within the spirit of the Removal Order. Mr. White testified that Perry & Co. and Campos managed the premium finance companies properly while he developed TIG's non-standard automobile insurance line out of Texas. He explained that out of all the hundreds of premium finance companies he had dealt with over the years that Perry & Co. and Campos "did it the way it was supposed to be done." He further testified that Campos told him up front about his problems in Florida and his association with First Miami. White was so pleased with Campos' services that he hired Campos' company, PC Group, to run his managing general agency, which Campos was still operating at the time of the hearing. White hasn't had any complaints about Campos and thinks Campos is known for the "best system out there." Mr. Parrillo has known Campos for 15 years. He has not had any business transactions with Campos. However, in his personal experience of dealing with Campos, he has never had any problems. Mr. Lidsky testified that he knows Campos because he has been a close friend of his father's for a number of years and a business associate. Lidsky and his wife started a nonprofit charitable organization, Hope for Vision, which raises funds for retinal degenerative disease research. Campos has been generous in his contributions and fundraising for the organization since its formation and has volunteered his time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Financial Services enter a final order finding that Alex Campos violated the terms of a 1995 Removal Order entered by the Department of Financial Services and denying his Petition to Terminate the Restriction and Prohibition. DONE AND ENTERED this 18th day of September, 2009, in Tallahassee, Leon County, Florida. JUNE C. McKINNEY 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 18th day of <September, 2009.
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent, WANDA DIRKS, was licensed in the State of Florida as a health insurance agent and was authorized to solicit health insurance policies on behalf of National States Insurance (National States) and on behalf of American Integrity Insurance Company (American Integrity). John Rickard was born March 18, 1905, and, at the times pertinent to this proceeding, lived in Fort Pierce, Florida. On February 25, 1988, Respondent sold to Mr. Rickard a Medicare supplement policy and a nursing home insurance policy, both issued through National States. On March 28, 1988, Respondent sold to Mr. Rickard a cancer insurance policy and a medical expense insurance policy, both issued through National States. In December 1988, Mr. Rickard suffered a stroke which left him partially paralyzed and which resulted in his having a colostomy. Following his hospitalization he was placed in a rehabilitation center. In February 1989, Mr. Rickard was transferred from the rehabilitation center to the Fort Pierce Care Center, which is a nursing home. Mr. Rickard was a continuous resident of that nursing home (except for a brief hospitalization which is not pertinent to the disposition of the issues herein) from the date of his admission to his death on December 22, 1989. Friends took Mr. Rickard on day trips away from the nursing home on occasion. From February 1989 until his death, Mr. Rickard was confined to a wheelchair and required assistance with his activities of daily living. Mr. Rickard had poor vision, but he could occasionally read with the assistance of a large magnifying glass. Prior to his admission to the nursing home, Mr. Rickard resided in his mobile home located at 164 Port St. Lucie Boulevard, Fort Pierce, Florida. Dee James was a friend and former coworker of Mr. Rickard who assisted him with the payment of his bills. Ms. James was the primary beneficiary of Mr. Rickard's estate. In April 1989, Ms. James' grandson and his girlfriend were living in Mr. Rickard's mobile home. On April 18, 1989, National States cancelled all of its policies of insurance that Respondent had sold to Mr. Rickard. The letter of cancellation provided, in pertinent part, as follows: During the course of routine investigation into your claims, it has come to our attention that the health history portions of the applications for your coverage are inaccurate and incomplete. Specifically, health history was not shown on the application. Had we been aware of your medical conditions we would not have issued this coverage. Consequently, we have no alternative but to rescind your coverage as of its effective date and to make full premium refund. Accordingly, we are enclosing our check in the amount of $4,005.80. Between April 18, 1989, and April 24, 1989, Respondent was contacted by Ms. James and advised of the cancellation of Mr. Rickard's policies of insurance by National States. Ms. James, at the request of Mr. Rickard, asked Respondent for her assistance and set up a meeting between Respondent and Mr. Rickard. On April 24, 1989, Respondent met with Mr. Rickard and prepared an application for a Medicare supplement policy of insurance to be issued by American Integrity. The application for the American Integrity policy contained the following caveat: "IF THE ANSWER TO ANY OF THE FOLLOWING QUESTIONS IS 'YES', THE APPLICANT IS NOT ELIGIBLE FOR COVERAGE". All of the questions that followed pertained to the medical history of the applicant and were answered in the negative. Respondent answered the questions on the application form based on information given to her by Mr. Rickard. The following were among those questions: Are you presently confined to a hospital or nursing home, or have you been hospitalized 4 times or more in the past 2 years? Are you presently bedridden or wheelchair confined? The location of this meeting between Respondent and Mr. Rickard is in dispute. Petitioner contends that the meeting occurred at the nursing home. This contention is based on evidence that Mr. Rickard was a continuous resident of the nursing home from the date of his admission except for the brief hospitalization. If Petitioner's contention is accepted, it follows that Respondent knew that Mr. Rickard was in the nursing home when she filled out the application. Respondent contends that the meeting occurred at Mr. Rickard's residence at 164 Port St. Lucie Boulevard, Fort Pierce and that she had no knowledge that Mr. Rickard was a nursing home patient when she filled out the application. Her contention is supported by evidence that friends took Mr. Rickard from the nursing home on occasion and by Respondent's testimony. The dispute is resolved by finding that Petitioner failed to establish by clear and convincing evidence that the meeting between Respondent and Mr. Rickard on April 24, 1989, occurred at the nursing home. Respondent's version of the meeting is accepted, and it is concluded that the meeting between Respondent and Mr. Rickard occurred at the mobile home Mr. Rickard owned at 164 Port St. Lucie Boulevard, Fort Pierce. It is further concluded that the evidence failed to establish that Respondent had actual knowledge that Mr. Rickard was residing in the nursing home when she filled out the American Integrity application. Ms. James set up the meeting between Respondent and Mr. Rickard, but neither she nor anyone other than Mr. Rickard was present when Respondent arrived at Mr. Rickard's mobile home on April 24, 1989. Respondent reviewed the American Integrity policy with Mr. Rickard and filled out the application that was submitted. Both Respondent and Mr. Rickard signed the application and he paid for the premium in the amount of $1,045.00 with a check that had been given to him by Ms. James. On April 24, 1989, Mr. Rickard was unable to ambulate and was confined to a wheelchair. He was unable to come to the door when Respondent knocked and he remained in a wheelchair during the meeting. It should have been apparent to Respondent when she completed the application for the American Integrity policy that Mr. Rickard was confined to a wheelchair. She knew or should have known that the application contained a false representation as to Mr. Rickard's physical condition and that he was not eligible to purchase this policy. The following appears on the application form above the Respondent's signature: I hereby certify that I have (1) accurately recorded the information supplied by the applicant; and (2) given an Outline of Coverage for the policy applied for and a Medicare Supplement Buyer's Guide to the applicant. Respondent testified that she read the questions on the application to Mr. Rickard, that he answered the questions, and that she wrote his answer on the application. She further testified that he reviewed the completed application with the use of his magnifying glass. The American Integrity policy would not have been issued had Respondent answered question 10 of the application in the affirmative. The American Integrity policy was subsequently issued. It was rescinded on November 11, 1989, after Ms. James notified American Integrity that Mr. Rickard resided in a nursing home, and Mr. Rickard received a full refund of the premium he had paid. Mr. Rickard and Ms. James filed no complaint with the Petitioner regarding Respondent. Neither blamed Respondent for the cancellation of the National States policies and both appreciated her efforts to be of assistance. The investigation into Respondent's actions was triggered by a complaint that Mr. Rickard, with the assistance of Ms. James, filed against National States. There was no evidence that Respondent's licensure had been subject to discipline prior to this proceeding. Respondent has a favorable reputation for service to her community and to her clients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 626.621(6), Florida Statutes, and which suspends her licensure and her eligibility for licensure for a period of three months. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. 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 29th day of April, 1991. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-8 and 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 9 are adopted in material part by the Recommended Order. The remaining proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence and as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-3, 5-6, 9, and 18 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4, 7, 14, 26-27, 29, 33-34, 36- 37, 39, 41-42, 45-52, 58-61 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 8, 10, 13, 15, and 17 are adopted in part by the Recommended Order and are rejected in part as being either subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 11-12, 16, 19-22, 24-25, 28. 35, and 53 are rejected as being either unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraph 23 are rejected as being argument and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 43 and 44 are rejected as being argument and as being subordinate to the findings made. The proposed findings of fact in paragraphs 30 and 40 are rejected as being contrary to the findings made. The proposed findings of fact in paragraphs 31 and 32 are rejected as incomplete recitations of testimony. The proposed findings of fact in paragraph 57 are rejected as being argument based on unsubstantiated facts. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance and Treasurer Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Wanda Sue Dirks 25 North Causeway Drive Ft. Pierce, Florida 34946 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's claim for medical expenses from August 6, 1982 through February 27, 1983 should be approved, pursuant to the State of Florida Employees Group Health Self Insurance Plan. Petitioner appeared at the hearing accompanied by legal counsel. The Hearing Officer thereupon explained his rights and procedures to be followed in the administrative hearing. Petitioner acknowledged that he understood his rights and elected to represent himself. Petitioner testified in his own behalf at the hearing and the parties stipulated to the introduction of Respondent's Exhibits 1 and 2. A late filed exhibit, Respondent's Exhibit 3, was also admitted in evidence. Respondent presented the testimony of one witness, William R. Seaton, Benefit Analyst for the Respondent's Bureau of Insurance.
Findings Of Fact Petitioner Thomas J. Appleyard, III, is a former state employee who retired with disability in 1976 as a result of cardiac disease. At the time Petitioner retired, he maintained coverage in the state Employees Group Health Self Insurance Plan under which the Blue Cross/Blue Shield of Florida, Inc. serves as the administrator of the plan for the state. Petitioner also receives disability benefits under the Medicare program for medical expenses. (Testimony of Petitioner) The State Group Health Self Insurance Plan provides in Section X, COORDINATION OF BENEFITS, that if an insured has coverage under Medicare, the benefits payable under the state plan will be coordinated with similar benefits paid under the other coverage to the extent that the combination of benefits will not exceed 100 percent of the costs of services and supplies to the insured. Paragraph D of Section X provides that the state plan will be the secondary coverage in such situations and will pay benefits only to the extent that an insured's existing insurance coverage does not entitle him to receive benefits equal to 100 percent of the allowable covered expenses. This provision applies when the claim is on any insured person covered by Medicare. (Testimony of Seaton, Respondent's Exhibit 3) Petitioner was hospitalized at the Tallahassee Memorial Regional Medical Center on three occasions in 1982-33. His Medicare coverage paid all but $261.75 of the hospital expenses. In February 1983, Petitioner also incurred medical expenses to his cardiologist, Dr. J. Galt Allee, in the amount of $248.33. Petitioner was originally denied his remaining hospital expenses by the administrator of the state plan under the erroneous belief that he was receiving regular Medicare benefits for persons over the age of 65. In addition, Dr. Allee's bill was only partially paid by Medicare, subject to the receipt of additional information from the physician. Payment under the state plan was limited to an amount sufficient to reimburse petitioner 100 percent of the amount originally allowed by Medicare. (Testimony of Seaton, petitioner, Respondent's Exhibit 1, 3) Respondent does not receive information on claims filed under the state plan until contacted by an employee. In February 1984, Petitioner requested assistance from William R. Seaton, Benefit Analyst, of Respondent's Bureau of Insurance, regarding his difficulties in receiving proper claims payments. Seaton investigated the matter with the Insurance administrator for the state, Blue Cross/Blue Shield of Florida, and discovered that the latter had not coordinated the hospital expense balance with Medicare. They thereafter did so and as of the date of hearing, there was no longer a balance due to Tallahassee Memorial Regional Medical Center. Seaton also gave written instructions to Blue Cross to review all of Petitioner's claims and make sure that they were paid properly, and to install controls on his and his wife's records. (Testimony of Petitioner, Seaton, Respondent's Exhibit 1-2) The full claim of Dr. Allee had not been paid by Medicare since it had been awaiting requested additional in formation from the physician. Such information was provided after a personal visit had been made to Dr. Allee by Seaton and Medicare then recognized additional eligible expenses. However, a balance of $36.00 is still owed to the physician due to the fact that Blue Cross/Blue Shield had not received the necessary payment information from Medicare as of the day before the hearing. (Testimony of Seaton, Respondent's Exhibit 1) Section XVII of the state's Group Health Self Insurance Plan benefit document provides that an employee who wishes to contest decisions of the state administrator considering the employee's coverage under the plan may submit a petition for a hearing for consideration by the Secretary of Administration. (Respondent's Exhibit 3)
