The Issue Is Petitioner entitled to reimbursement under the State of Florida Employees Group Health Self Insurance Plan for $300.00 she spent for chiropractic treatment between 11/16/83 and 01/23/84?
Findings Of Fact Petitioner is and has been an employee of the State of Florida for a number of years. In February of 1974, she subscribed to the general group health insurance plan offered by the State of Florida Employees Group Health Self Insurance Plan under contract no. 264158282. Blue Cross of Florida Inc. and Blue Shield of Florida Inc. are the designated claims agent/administrator for the general plan and its options/addenda. Petitioner was first treated by Dr. Steven M. Willis, D.C., in January, 1983. She did not initially present to Dr. Willis, a chiropractor, for trauma but for symptoms of chronic sciatica and leg pain. She was treated the remainder of that month for sciatica but did not subscribe to the state group health plan until February 1, 1983. Although her application for chiropractic coverage was not offered or admitted in evidence, Petitioner testified that she answered all questions thereon and Respondent did not affirmatively raise any issues of lack of coverage due to effective date of coverage, or due to addendum changes, or due to concealment or due to fraud and on the basis of Petitioner's exhibits as a whole, I find that she acquired chiropractic coverage during a period of open enrollment and that from February 1, 1983 on, the plan took her as it found her and provided complete chiropractic coverage. In dispute in this cause are a series of chiropractic treatments and charges incurred by the Petitioner with Dr. Willis. Claims for the following dates of treatment were made in the name of a health care provider, Robert G. Hildreth, D.C." Dr. Hildreth made the formal claims upon Petitioner's assignment to the Centerville Road Chiropractic Clinic in which both chiropractors are partners. There is no dispute that the following treatments were rendered by Dr. Willis and properly assigned for payment by Petitioner: 11/16/83 - $20.00 12/21/03 - $6.44 11/22/83 - $20.00 12/29/83 - $20.00 11/28/83 - $20.00 01/03/84 - $20.00 12/05/83 - $20.00 01/06/84 - $20.00 12/09/83 - $20.00 01/13/84 - $20.00 12/14/83 - $20.00 01/17/84 - $20.00 12/19/83 - $20.00 01/19/84 - $20.00 12/21/83 - $20.00 01/23/84 - $20.00 Claims for some or all of these treatments/amounts were submitted by the chiropractors a number of times and rejected by Blue Cross/Blue Shield as the state administrator a number of times. Petitioner conceded at hearing that the 12/21/83 charge in the amount of $6.44 was properly rejected for lack of coverage of supplies costs. The first rejection of some of the other charges was for failure of the doctors' bookkeeper to include the correct diagnosis and procedure codes on the claims forms. This was corrected and resubmitted and thereafter all of the charges for treatment were rejected (either together or piecemeal) for payment upon grounds that 26 visits had already been paid for and that after the maximum number of 26 visits has been paid the state plan pays for no more chiropractic visits. Blue Cross/Blue Shield resumed paying for chiropractic treatment for the chronic back and leg problems on 1/27/84. In light of Blue Cross/Blue Shield's earlier response, Petitioner and Dr. Willis concluded that this must be because a new year was beginning and a new 26 visits would be paid annually. However, Respondent stipulated at hearing, that although private Blue Cross/Blue Shield insurance plans may have such a maximum, the state plan has no such 26 visits annual maximum. Petitioner and Dr. Willis questioned Blue Cross/Blue Shield about its 26 visit annual maximum reason for rejection, so Blue Cross/Blue Shield sent a "review sheet" asking Dr. Willis to justify his diagnosis and treatment. His justification was supplied on the review sheet (R-1) dated February 27, 1984. After review, Blue Cross/Blue Shield advised Petitioner and Dr. Willis that payment for these treatments had been determined not to be "medically necessary" by its chiropractic board of review. Petitioner responded with a timely request for Section 120.57(1) hearing. Petitioner eventually paid for the treatments in question out of her own pocket. In support of her position that her treatments (all of which may be generically described as "spine adjustments") are "medically necessary, Petitioner offered the testimony of Dr. Willis, the treating chiropractor. In addition to relating facts, I find Dr. Willis by education, training, and experience is capable of giving expert opinions in the field of chiropractic medicine. Dr. Willis testified that he first saw Petitioner on 1/12/83 for sciatic pain in both legs. After taking a complete history revealing previous orthopedic treatment locally with Dr. Haney and previous podiatric treatment locally with Dr. Merritt, treatment with another doctor in Orlando and with another podiatrist in Texas, Dr. Willis initially diagnosed acute lumbosacral neuralgia and treated Petitioner 3 times per week for 6 weeks. He opined that Petitioner's case was unusual in that Petitioner wanted to remain as athletically active as possible, including but not limited to running 10-50 miles per week and participating in a number of sports. Dr. Willis subsequently revised his diagnosis to make it bilateral sacrilization at the L-5/S-1 vertebrae, anterior gravitational syndrome and hyperimbrication at the L4/L5 vertebrae. Put into laymen's terms, Petitioner's L-4 / L-5 vertebrae do not have full range of motion and this results in Petitioner's low back pain at that level. In Dr. Willis' opinion, due to a congenital abnormality, in Petitioner, her condition is not fully correctable. On 4/5/83, Petitioner came to Dr. Willis with back pain which he diagnosed as the result of a trauma occurring as a result of weight lifting Petitioner had done on 4/4/83, and subsequently she suffered a trauma to the unstable back while windsurfing. On 10/28/83, Petitioner reported pain in the medial aspect of her left foot which Dr. Willis diagnosed as tendonitis. In January, 1984 he referred her to Dr. Merritt, a local podiatrist for a severe left shin/ankle/ metatarsal problem. These various diagnoses, treatments, and referrals, are important to the instant issue involving spine adjustment treatments between 11/16/83 and 01/23/84 for chronic back pain at L-4 through S- 1 because they serve to illustrate diagnosis and treatment differences between trauma situations and continuing treatment for exacerbations of the chronic back and foot/leg problems for which cost of treatment reimbursement is sought. "Apparently, however, there was no problem with payment of any fees charged until 11/16/83 (the twenty-seventh visit in 1983), and clearly payments resumed as soon as the calendar rolled over to 1984. Dr. Willis further diagnosed concluded that there is pedal instability of Petitioner's foot resulting in ankle and shin problems and that these problems in turn create an imbalance; the imbalance in turn causes great wear and tear in the lumbar (low back) region. The low back is again exacerbated by increased periods of activity. During these periods of exacerbation he treats Petitioner's chronic back pain with spine adjustments. There may be long periods between exacerbations when treatments are not necessary. It is for the periods of exacerbation that the treatments in question were administered and for which Petitioner seeks reimbursement. Although Dr. Willis conceded on cross-examination that frequency of treatment in a case like Petitioner's is a matter of chiropractic judgment and also that opinions among health care providers and especially chiropractors may differ as to whether the treatments he has provided to Petitioner are medically necessary or not, he states emphatically that in his professional opinion they are medically necessary. Upon consideration of all the testimony and evidence, I find the treatments between 11/16/83 and 01/23/84 to be remedial as opposed to merely palliative in nature due to the considerable instability of both the back and foot which continued to be exacerbated by Petitioner's particular lifestyle. Both Petitioner and her doctor testified that chiropractic treatment sessions in her case have always included preventive counselling as well as therapeutic treatment. The goal of such counselling is to substitute non-exacerbating or less-exacerbating recreational activities for those Petitioner would otherwise pursue (i.e. weight training and swimming in place of running and wind surfing).
Recommendation Upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Administration enter a Final Order finding Petitioner's treatments in question "medically necessary and ordering the plan administrator (Blue Cross/Blue Shield) to reimburse her $300.00 therefor (amount claimed less the admittedly "not covered" $6.44 supplies charge on 12/21/83.). DONE and ORDERED this 2nd day of May, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Dara Houliston 2308 Notley Court Tallahassee, Florida 32308 Daniel C. Brown, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact The Respondent has been licensed by the Department of Insurance as an insurance agent since 1966. Prior to the initiation of this proceeding, he has not been the subject of any disciplinary action by the Department. The Respondent has had a successful career as an insurance agent, and has been an active member of his community. During 1977 the Respondent actively marketed membership in a program known as the National Business Conference Employee Benefit Association (NBCEBA). The program offered by NBCEBA constituted a health insurance plan, and as such was subject to regulation under the Florida Insurance Code. The NBCEBA program operated as if it were exempt from state regulation under the Federal Employee Retirement Income Security Act (ERISA), Chapter 18, United States Code, Sections 1001, et seq. Qualified plans under ERISA were not subject to regulation under state insurance codes. The plan offered by NBCEBA did not qualify as an ERISA plan. Such plans could only be offered by employee organizations. NBCEBA solicited members who were employed by diverse employers, and who participated in diverse occupations. Membership in NBCEBA thus lacked the commonality of employment status among members required of employee organizations under ERISA. Since the plan offered by NBCEBA did not qualify as an ERISA plan, it was subject to regulation by the State of Florida as a program of insurance. Indeed, the essence of the NBCEBA plan was to offer a program of insurance to its "members." NBCEBA has never held a certificate of authority to transact an insurance business in the State of Florida. The Department of Insurance became aware of the plan being offered by NBCEBA to Florida citizens. The Department came to the conclusion that the plan constituted Insurance program not subject to exemption from state regulation under ERISA. By letter dated September 26, 1977, the Department advised Florida agents who were selling memberships in the NBCEBA program of its opinion that the program did not qualify for exemption from state regulation under ERISA, and that NBCEBA was acting as an unauthorized insurer in Florida. The letter requested that the agents cease and desist from further solicitation of prospective members of the plan. This letter was sent to the Respondent. The Respondent received it in the ordinary course of the mail. Shortly after sending this letter, the Department requested an opinion from the United States Department of Labor as to whether the NBCEBA program was exempt from state regulation. During March, 1978, the Department received a response in which the United States Department of Labor advised that in its opinion, NBCEBA was not a qualified program under Chapter 18, United States Code, and that the NBCEBA plan was subject to regulation by the State of Florida. After receiving the letter from the Department advising him of its opinion that the NBCEBA plan was not a qualified insurance program, the Respondent discussed the letter with Mr. Robert Klein, the owner of Planned Marketing Systems. Planned Marketing Systems was the general agent for the NBCEBA program in Florida. Mr. Klein advised the Respondent that the plan would eventually be approved in Florida. The Respondent did not cease marketing the NBCEBA plan. On or about October 31, 1977, he completed an application and accepted a premium payment for membership in the plan on behalf of Mr. Rafael Sanchez. Sanchez had been a friend of the Respondent and had used the Respondent as his insurance agent. The premiums on Sanchez's health insurance policy had increased dramatically during 1977. Membership in the NBCEBA plan was considerably cheaper than premiums that Sanchez needed to pay for other health insurance programs. Sanchez did not appear as a witness at the hearing, and the evidence would not support a finding as to what, if any, representations were made by the Respondent to Sanchez respecting the failure of NBCEBA to qualify as an insurance plan under the laws of the State of Florida. The evidence would not support a finding as to whether Respondent advised Sanchez as to his correspondence from the Department relating to NBCEBA. During May, 1978, Sanchez made an application to NBCEBA for benefits. NBCEBA did not honor the claim, and has since filed for bankruptcy in the United States District Court for the District of Oregon. Sanchez has thus been left liable to pay medical expenses that should have been covered under the NBCEBA plan.
The Issue The issue presented is whether Petitioner is eligible to participate in the State of Florida's group health insurance plan.
Findings Of Fact Petitioner Judy Stahl began her employment with the State of Florida as a public assistance specialist with the Department of Children and Families on October 4, 1991. She began participating in the State's group health insurance program on December 1, 1991. Petitioner voluntarily terminated her employment by the State on November 28, 2002, for personal reasons. In her letter of resignation she stated that it was her intention to again seek employment with the State after the personal situation which caused her to resign was concluded. Premiums for the State's group health insurance are paid one month in advance. Therefore, Petitioner's coverage under the State's group health insurance program continued through the end of December 2002. In January 2003, the State's Division of State Group Insurance notified Petitioner of her right to elect continuation coverage under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) and the federal Public Health Services Act (PHSA). Petitioner so elected and continued her participation in the State's group health insurance under COBRA for the maximum period of 18 months that was available to her. Her continuation coverage expired June 30, 2004. In May 2004 the State's Division of State Group Insurance notified Petitioner that her continuation coverage would soon expire and further advised her of her right to convert her insurance coverage to a private, individual policy. Petitioner exercised her option to convert to a private policy, effective July 1, 2004. In March 2005 the Florida Division of Retirement sent Petitioner an Estimate of Retirement Benefits. The Estimate contained the comment that: "As a result of a review of accounts for terminated members, it was determined that you are eligible for retirement benefits." The Estimate form was accompanied by a pamphlet explaining the Florida Retirement System Pension Plan. It was also accompanied by information on the State Employees' Preferred Provider Organization (PPO) health plan. The retirement pamphlet included the information that health insurance was available to retirees; however, the health insurance information advised that health insurance was only available to certain retirees. Petitioner concluded that if she retired, she could obtain cheaper health insurance from the State than from her private provider. This was the first time that Petitioner considered the possibility of retirement. Petitioner thereafter made many telephone calls to the Department of Children and Families, to the Division of Retirement, to the Division of State Group Insurance, and to People First, inquiring about retirement and insurance. These telephone inquiries were the first time she mentioned to any State employee or representative that she was interested in retiring. At the end of March 2005 she made the decision to retire and submitted her application for retirement benefits. Her effective retirement date was April 1, 2005. At the time Petitioner filed her application for retirement, she was no longer participating in the State's group health insurance program. At the time she filed her application for retirement, she was no longer participating in continuation coverage pursuant to COBRA. She was insured under a private policy. At the time of her initial enrollment in the State group health insurance program, Petitioner signed a new enrollee form that, inter alia, advised her that eligibility and enrollment were governed by the provisions of Florida Administrative Code Rule 22K-l. During her employment she also enrolled in supplemental dental insurance. That enrollment application form notified Petitioner that any changes in enrollment or coverage are governed by the federal Internal Revenue Code and the Florida Administrative Code. Throughout her employment and at the time that she terminated her employment, she completed Annual Benefits Open Enrollment forms, which also notified her that any changes in enrollment or coverage are governed by the Internal Revenue Code and the Florida Administrative Code. While employed by the Department of Children and Families, Petitioner was provided with copies of the State of Florida Employees Group Health Self Insurance Plan Booklet and Benefit Document. Those booklets describe eligibility for participation to include employees, certain retirees, and COBRA participants. They also describe termination of coverage due to termination of employment and describe continuation coverage and conversion coverage. At the time Petitioner retired, she was not a State employee; she was a former State employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner is not eligible to participate in the State's group health insurance program. DONE AND ENTERED this 19th day of January, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 19th day of January, 2006. COPIES FURNISHED: Mark J. Berkowitz, Esquire Mark J. Berkowitz, P.A. 524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301 Sonja P. Matthews, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Tom Lewis, Jr., Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues in this case are whether Respondent, Leonard Louis Zanello, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services on October 16, 2008, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. Respondent Leonard Louis Zanello is currently and was at the times relevant, licensed in Florida as a health agent (02-40), and a life and health agent (02-18). Mr. Zanello’s license number is A293282. Count I: Failure to Submit Florida Office of Financial Regulation Order to the Department. On June 12, 2003, the Florida Office of Financial Regulation (hereinafter referred to as the “OFR”), f/k/a the Florida Office of Financial Institutions and Securities Regulation, entered a Final Order against Mr. Zanello in a case styled In Re Leonard Zanello, Administrative Proceeding No. 0663-I-3/02 (the OFR Order). The OFR Order related to alleged violations by Mr. Zanello of Florida securities laws. No copy of the OFR Order was submitted to the Department by Mr. Zanello within 30 days after it was entered as required by Section 626.536, Florida Statutes. Nor has a copy of the OFR Order ever been submitted by Mr. Zanello to the Department. Mr. Zanello’s claim that he provided a copy of the OFR Order to Carl Morstadt, Esquire, an attorney at the time with the OFR, was unconvincing and has not been credited. Some of the reasons for rejecting Mr. Zanello’s testimony on this issue have been more fully described in paragraphs 8(2) through (4) of the Department’s Proposed Recommended Order. Those proposed findings are incorporated into this Recommended Order by this reference. Count II: Failure to Submit Securities and Exchange Commission Order to the Department. On January 7, 2004, the United States Securities and Exchange Commission (hereinafter referred to as the “SEC”), entered an Order against Mr. Zanello in a case styled In the Matter of Louis L. Zanello, Sr., Admin. Proceeding File No. 3- 11370 (hereinafter referred to as the “SEC Order”). The SEC Order involves violations by Mr. Zanello of Federal securities laws. As admitted by Mr. Zanello, no copy of the SEC Order was submitted to the Department by him within 30 days after it was entered as required by Section 626.536, Florida Statutes. Nor has a copy of the SEC Order ever been submitted by Mr. Zanello to the Department. Mr. Zanello’s claim that he was unaware of the SEC Order was unconvincing and has not been credited. Some of the reasons for rejecting Mr. Zanello’s testimony on this issue have been more fully described in paragraph 15 of the Department’s Proposed Recommended Order. Those proposed findings are incorporated into this Recommended Order by this reference. Count III: Misstatement in the Sale of an Insurance Policy and Twisting. On January 3, 2004, Mr. Zanello met with Ms. Anne Paul of Coconut Creek, Florida. Ms. Paul was 80 years of age at the time she met with Mr. Zanello. At the January 3, 2004, meeting with Ms. Paul, Mr. Zanello sold her a long-term care insurance policy with AF&L Insurance Company (hereinafter referred to as “AF&L”). When she purchased the AF&L insurance policy (hereinafter referred to as the “AF&L Policy”), Ms. Paul already had a long-term care insurance policy. That policy was with Kanawha Insurance Company (hereinafter referred to as “Kanawha”)(the long-term care insurance policy from Kanawha will hereinafter be referred to as the “Kanawha Policy”). Shortly after her meeting with Mr. Zanello, Ms. Paul informed Rita Baskin, whom Ms. Paul then regarded as her “financial advisor,” of her purchase of the AF&L Policy. Ms. Baskin convinced Ms. Paul that the AF&L Policy was not as beneficial as her Kanawha Policy and that she should immediately cancel the AF&L Policy. Why Ms. Baskin, who is now deceased, told Ms. Paul that the Kanawha Policy was a better product and, more importantly, why Ms. Paul believed that the Kanawha Policy was a better long-term care insurance policy than the AF&L Policy were not proven at hearing. Regardless of the specific reasons why, in reliance on Ms. Baskin’s advice, Ms. Paul cancelled the AF&L Policy. Ms. Paul testified by telephone during the hearing of this matter. Ms. Paul testified that she had informed Mr. Zanello about her Kanawha Policy at the time she purchased the AF&L Policy. She also testified that she agreed to purchase the AF&L Policy in complete reliance upon Mr. Zanello’s representation to her that the AF&L Policy was a better product than the Kanawha Policy. Ms. Paul’s testimony came more than five years after she had purchased the AF&L Policy (she was more than 85 years of age at the time of the hearing), and she had suffered a broken wrist the Friday before the hearing. Her arm was in a cast, she was taking no pain medication, and she indicated that she was in distress from pain during her testimony. In light of these facts and others, Ms. Paul’s testimony concerning what she told Mr. Zanello and her reliance upon representations from him concerning which policy was better was not clear and convincing. Ms. Paul’s testimony in this regard has, therefore, been rejected. Based upon the totality of the evidence in this case, the evidence simply failed to prove clearly and convincingly what transpired on January 3, 2004, when Mr. Zanello sold Ms. Paul the AF&L Policy, other than the fact that Ms. Paul purchased the AF&L Policy. D. Count IV: Misstatement on Insurance Application. Question 2 of Part IV of the AF&L Policy application signed by Ms. Paul, asks the following: Do you now or within the last 12 months had [sic] another Long-term Care, Nursing Home, or Home Health Care Insurance policy in force (including health care service or health maintenance organization contracts)? Question 3 of Part IV of the AF&L Policy application asks the following: Will this policy replace any of your medical, health or long-term care insurance? Mr. Zanello completed Part IV of the application for the AF&L Policy, asking Ms. Paul the questions and recording her answers. The answer to Questions 2 and 3 of Part IV of the application recorded by Mr. Zanello is “No.” Because the evidence failed to prove clearly and convincingly that Ms. Paul informed Mr. Zanello of the Kanawha Policy, the evidence failed to prove that incorrect answers to Questions 2 and 3 of Part IV of the application for the AF&L Policy were knowingly filled in by Mr. Zanello. If Mr. Zanello had been aware that Ms. Paul was replacing her Kanawha Policy with the AF&L Policy, which the evidence failed to prove, he was required to provide her with a “Notice to Applicant Regarding Replacement.” See Fla. Admin. Code R. 69O-157.016(2). While Ms. Paul was not provided a copy of a Notice to Applicant Regarding Replacement by Mr. Zanello, the evidence failed to prove that Mr. Zanello knowingly failed to provide the Notice to her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Leonard Louis Zanello violated the provisions of Chapter 626, Florida Statutes, as alleged in Counts I and II of the Administrative Complaint and described, supra; dismissing Counts III and IV of the Administrative Complaint; and suspending his licenses for a period of six months. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009. COPIES FURNISHED: Robert Alan Fox, Senior Attorney Division of Legal Services Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Leonard Louis Zanello, Sr. 1074 Northwest 121st Lane Coral Springs, Florida 33071-5005 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue Whether the State of Florida through its Employees Group Health Self Insurance Plan is responsible for paying medical expenses incurred by Petitioner's newborn child where Petitioner had only individual coverage in effect at the time of that child's birth?
Findings Of Fact The State of Florida makes available to its employees several group insurance programs. In the area of health insurance, employees may choose to participate in the State of Florida Employees Group Health Self Insurance Plan, or they may enroll in a number of different HMOs depending upon the county in which each employee resides. The State of Florida Employees Group Health Self Insurance Plan (hereinafter "the Plan") is a plan of self insurance established by the State, specifically described in a Benefit Document, and administered by Blue Cross/Blue Shield. In addition to the provisions of the Plan embodied in the Benefit Document, the self insurance plan is regulated by those rules contained in Chapter 22K, Florida Administrative Code. If an employee voluntarily chooses to participate in the Plan, the State as the employer contributes to the employee's costs by paying a portion of the premium for each employee. HMOs wishing to capture a portion of the State employee insurance market may participate in bidding procedures whereby the winner(s) can offer insurance to State employees in particular geographical locations. Winning HMOs must comply with many of the rules and provisions involved in the Plan but are still able to establish additional benefits and requirements for coverage. If an employee voluntarily chooses to participate in an HMO insurance program, the State will assist with the employee's costs by contributing to that employee's insurance premium expense. At the time that they commence employment with the State, employees may elect to participate in the Plan, in one of the HMOs approved for that particular geographical location, or may choose to not participate in any of the voluntary insurance programs offered through the State. Thereafter, employees may only join one of the insurance programs or switch between programs during an annual open enrollment period. An employee may purchase individual coverage, insuring only himself or herself, or an employee may purchase family coverage, insuring that employee and one or more of his or her eligible dependents. During an open enrollment period, an employee may switch between individual coverage and family coverage for the following year. Under the State Plan, there is an exception to the restriction that employees may only change coverage and health plans during the open enrollment period. An employee having individual coverage may change to family coverage within 31 days after the date of acquisition of any eligible dependent. In that event, coverage for the eligible dependent does not relate back to the date of acquisition but rather will commence on some future date following the payment of the additional premium required for the additional family coverage. Similarly, an employee with only individual coverage may begin family coverage prior to acquiring eligible dependents and may obtain coverage for those dependents effective on the actual date the dependent is acquired by making application in time for a complete month's premium to be deducted prior to the first day of the month during which the dependent(s) will be acquired. In other words, payment must be made prior to the acquisition of an eligible dependent and the change to family coverage with its increased premium must be made prior to the acquisition of the dependent in order that coverage can be effective as of the date of acquisition. During open enrollment periods, all employees (even those not currently participating in any of the insurance programs offered by the State) are given summary information regarding the various programs in which they are being given an opportunity to participate. Brochures giving summarized comparisons of the Plan and the relevant HMOs are provided to all employees. Employees are advised, if they have questions regarding the Plan, to contact their personnel officer or the Division of State Employees' Insurance. After the employee makes a selection as to which health plan he or she wishes to participate in, if any, the employee will subsequently receive more detailed information about that plan. For example, an employee choosing to participate in the Plan will subsequently receive a copy of the State of Florida Employees Group Health Self Insurance Plan Brochure. The first page of that Brochure specifically advises the employee that the brochure does not include all of the provisions, definitions, benefits, exclusions, and limitations of the Plan. The Brochure specifically advises the employee that it is a summary of the benefits and that any questions the employee might have should be presented to the employee's agency personnel offices or the Office of State Employees' Insurance, and provides that latter office's address and telephone numbers. The Plan itself is a lengthy document which is not distributed to each individual employee but rather is made available to each agency's personnel office for reference by any interested employee. Under the Plan, a woman with individual coverage is entitled to maternity or pregnancy benefits. As part of those benefits, charges for "well baby care," i.e., the charges for the nursery for the baby, are covered under the Plan as part of the maternity benefit of the mother. In well-baby care, charges are not incurred by the baby as a separate patient. On the other hand, if a baby is ill and is admitted to the hospital as a patient in its own right, well-baby care coverage does not apply, and family coverage must be in effect or the infant will be an uninsured individual under the State Plan. The Dade County Public Defender's Office has approximately 265 employees. Faith Quincoses, an Administrative Assistant in that office, began her employment there in 1981 when the office had approximately 165 employees. As the number of office personnel increased, it was determined that someone within that Office should be responsible for employee benefits. That assignment was given to Quincoses, who at the time had duties related to payroll. Quincoses had no training in employee benefits, particularly employee insurance benefits, prior to her assuming responsibility for those duties at the Dade County Public Defender's Office. After she assumed those duties, the Public Defender's Office provided her with no training, and that office did not send her to any of the training sessions regularly conducted by Respondent for employees with and without personnel duties, including those seminars related to employee insurance benefits. When Quincoses would receive informational brochures and memoranda from Respondent regarding employee insurance benefits, she would read them but intentionally did not study them. She did not believe it was her responsibility to assist employees in selecting a particular insurance plan, or in advising employees as to which plan best met that employee's needs, or in answering any specific questions regarding coverage that any employee may have other than routine questions. Although many, if not most, of the informational brochures received from time to time by Quincoses advised employees (including Quincoses) to contact the Division of State Employees' Insurance with any questions regarding benefits and coverage, Quincoses did not contact that office when she had questions about the several insurance plans offered by the State to its employees. She very seldom contacted the Division of State Employees' Insurance to ask questions; rather, she discussed insurance benefits and coverage questions on an almost daily basis with a payroll clerk who worked for the Justice Administrative Commission, an agency belonging to the judicial branch of government with no responsibility or authority for administering the various insurance programs for state employees. Although Quincoses knew that she did not posses a copy of the State of Florida Employees Group Health Self Insurance Plan and had never read a copy, she made no effort to obtain a copy other than to once request a copy from the payroll clerk she daily contacted at the Justice Administrative Commission. When told by that payroll person that she did not have a copy of the Plan, Quincoses made no further efforts to obtain a copy and never requested a copy from the Division of State Employees' Insurance. Quincoses knew she was not an insurance expert and did not feel the need to become one. She believed that her responsibilities regarding the various insurance programs made available to employees by the State of Florida was to simply disseminate information provided to her, fill out the appropriate forms for payroll deductions, answer routine questions, and refer specific questions to the Division of State Employees' Insurance. She rightfully believed that each employee's decision as to which of the individual plans that employee should select was the employee's responsibility. Petitioner Annemarie Harris is an attorney employed as an Assistant Public Defender by the Dade County Public Defender's Office since October, 1983. As a new employee, she chose to enroll in one of the group health insurance programs approved by the State. She chose to join an approved HMO plan rather than enroll in the State of Florida Employees Group Health Self Insurance Plan. Thereafter, and up through December of 1987, each year during the open enrollment period, Petitioner chose to participate in one of the approved HMOs rather than the State's Self Insurance Plan. In December of 1987, the contract between the HMO of which Petitioner was a member and the State of Florida was being terminated, and Petitioner therefore had the option of selecting to participate in one of the other group health insurance programs offered through the State of Florida. In December of 1987, Petitioner was three months pregnant. Her baby was due to be born approximately June 20, 1988. Petitioner was, therefore, very interested in the most extensive coverage which she could obtain for her maternity benefits. Petitioner advised Quincoses that her expected delivery date was June 20, 1988, and that she wished her newborn to be covered by the insurance policy to be selected by Petitioner. Quincoses advised Petitioner that the baby's expenses would be covered if Petitioner added the newborn baby to Petitioner's coverage within 31 days after the date the baby was born. Quincoses did not advise Petitioner that waiting until after the baby's birth would mean that the baby would not be an individual insured until after Petitioner had paid the premium in time for the baby to be added as an insured by the first day of a month subsequent to the baby's birth, since Quincoses did not understand that distinction. The information Quincoses gave Petitioner was wrong and is not contained in any of the written materials describing the Plan which had been transmitted by the State to Quincoses or Petitioner, and is contrary to the information contained in Chapter 22K, Florida Administrative Code. Petitioner then conducted her own investigation of which health plan she wished to choose by asking her friends that worked in the Public Defender's Office about their personal experiences. Further, as Petitioner testified at the final hearing in this cause, Petitioner's husband strongly insisted that she choose the State's Self Insurance Plan in which Plan he had previously participated as a State employee and with which he therefore had some familiarity. Petitioner did not contact the Division of State Employees' Insurance regarding her specific questions and specific situation, did not consult the Benefit Document itself and did not--although both she and her husband are attorneys--consult the rules and regulations regarding coverage contained within Chapter 22K, Florida Administrative Code. Petitioner voluntarily selected the State's Self Insurance Plan and purchased only individual coverage, insuring herself at a lower premium than family coverage which would have covered the newborn infant as of the date of the baby's birth. It is unknown whether Petitioner relied solely on the advice of Quincoses in choosing to purchase individual coverage rather than family coverage, whether Petitioner relied instead on the advice she obtained from questioning her friends or whether she relied upon her husband's desires, in choosing to participate in the State Plan or in choosing to purchase only individual coverage. Although the basis for Petitioner's decision is unknown, her intentions at the time are clear. She planned to, and took steps to, initiate the paperwork necessary to switch to family coverage and pay the additional premium required early enough so that insurance for the baby would be in place on June 1, 1988, prior to the baby's expected arrival date. During April of 1988, Petitioner caused Quincoses to begin filling out the appropriate forms so that Petitioner would have family coverage in place as of June 1, 1988. Since Quincoses had earlier advised Petitioner that Petitioner could switch to family coverage after the baby's birth (which would make the baby's coverage effective subsequent to the baby's birth) but Petitioner chose instead to attempt to convert to family coverage prior to the baby's birth (which was contrary to Quincoses' advice and would have established coverage immediately upon the baby's birth), it can be reasonably inferred that Petitioner understood that the difference between converting to family coverage prior to the baby's birth rather than subsequent to the baby's birth involved the sole issue of the date on which the baby's coverage would become effective. Although Quincoses initiated the paperwork to have family coverage in place for Petitioner prior to the baby's birth expected to occur on June 20, 1988, Petitioner experienced complications with her pregnancy causing the baby to be delivered prematurely on April 24, 1988, prior to Petitioner signing and processing the paperwork started by Quincoses. Almost immediately after the baby's birth, the baby was transferred from the hospital in which her mother was a patient to another hospital where the baby was admitted as a separate patient. The baby remained in that hospital for some time, incurring medical expenses of approximately $180,000.00. Petitioner's medical expenses were paid by the Plan pursuant to her individual coverage. The baby's medical expenses were submitted to the Plan. Petitioner's claim for payment of the baby's medical expenses was denied for the reason that the baby was admitted to a different hospital than the mother as a separate patient but was not an insured under any insurance policy as of the date of the baby's birth, the date on which the baby commenced incurring her own personal medical expenses. When Petitioner converted her individual coverage to family coverage subsequent to the baby's birth, her claims for payment of the baby's medical expenses incurred subsequent to the date upon which the baby became an insured under the State Plan were denied since they arose from a condition pre-existing the date of commencement of insurance coverage. On April 24, 1988, Petitioner's newborn child was not an insured under the State Plan since Petitioner only had individual coverage on that date.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's claims for payment of medical expenses incurred by Petitioner's newborn baby which are the subject of this proceeding. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of October, 1989. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO 88-5519 Petitioner's proposed Findings of Fact numbered 1-4, 7-9, 15-18, 34, 35, 37, 38, and 40-42 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed Findings of Fact numbered 5, 6, 10-12, 21, and 33 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed Findings of Fact numbered 13, 14, 39, 44, and 45 have been rejected as being subordinate to the issues for determination herein. Petitioner's proposed Findings of Fact numbered 19 and 22-25 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. Petitioner's proposed Findings of Fact numbered 20, 26-31, and 43 have been rejected as being irrelevant to the issues under consideration herein. Petitioner's proposed Finding of Fact numbered 32 has been rejected as being contrary to the weight of the totality of the evidence in this cause. Petitioner's proposed Finding of Fact numbered 36 has been rejected as being unnecessary for determination of the issues involved herein. Respondent's proposed Findings of Fact numbered 1-5, 7-18, the second 19-24, the first 27, the second 26, the second 27, and 28 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed Findings of Fact numbered 6, the first 19, 25, and the first 26 have been rejected as being subordinate to the issues required to be determined in this proceeding. COPIES FURNISHED: James N. Hurley, Esquire William P. Harris, Jr., Esquire Mitchell, Harris, Horr & Associates 2650 Biscayne Boulevard Miami, Florida 33137-4590 William A. Frieder, Esquire Department of Administration Office of the General Counsel 440 Carlton Building Tallahassee, Florida 32399-1550 A. J. McMullian, III Interim Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact The Petitioner, at all times pertinent hereto was an employee of the Department of Health and Rehabilitative Services. The Respondent is an agency of the State of Florida charged with administering the group self-insurance health insurance program and other insurance programs such as life insurance and is the agency charged with accepting or rejecting applications for coverage under those programs, such as the application at issue. On January 11, 1980 the Petitioner commenced employment with the State of Florida, Department of Health and Rehabilitative Services as a District Intake Counselor in District eleven of the Department. Shortly after commencing employment the Petitioner attended an orientation meeting during which all insurance benefits and other benefits available for state employees were explained. Ernestine Thurston, the HRS employee who conducted the orientation session on January 11, 1980 informed all employees present at that orientation meeting, including the Petitioner, of the available benefits and the means by which they were to avail themselves by proper application, of those benefits, including the fact that the Petitioner had thirty days to enroll in the State Group Health Insurance Program without the necessity of obtaining medical approval for insurability. A second orientation meeting was held during which insurance benefits were explained for a second time to the employees whose names were depicted on the recruitment log, which names include the Petitioner 's. The Petitioner was present at both orientation sessions. At the first orientation session on January 11, 1980 the Petitioner received an HRS Employee Handbook which included the following language concerning insurance benefits: "Employees may enroll within 30 days of date of employment without evidence of insurability. "Application at a later date requires proof of insurability. Consult your supervisor, personnel manager, or district/central personnel office for additional information." The Petitioner admitted that she signed a receipt on January 11, 1980 acknowledging receipt of a complete copy of that Employee Handbook and which receipt included the following language: "I understand that it is my responsibility to review the pamphlet in detail and request any clarification needed from my supervisor or personnel office." Petitioner conceded that she did not read the pamphlet or handbook, but instead put it in her desk drawer at her office. On January 14, 1980, knowing of the need to apply for insurance benefits within 30 or 31 days of her employment during the open enrollment period, the Petitioner applied for various insurance -overages and submitted the pertinent enrollment forms through her District 11 personnel office. She applied for and received State Supplemental Health Insurance coverage through the Gulf Life Insurance Company (then called the "20/20" plan). This supplemental health insurance coverage was designed to complement the overall state group health insurance program or plan. The Petitioner at that time was covered under the overall state group health insurance plan (The Plan) through her husband's family coverage since he was an employee covered under that plan at the time. The Petitioner also timely applied for and received coverage under the state life insurance program as well. The Petitioner did not submit a new enrollee form requesting to participate in the State of Florida Employee's Group Health Self Insurance Plan within 31 calendar days of January 11, 1980. The Hearing Officer has considered the Petitioner's testimony as well as that of Ms. Thurston and the other evidence surrounding the circumstances of her initial employment, the explanation of insurance coverage benefits, including the time limit for the open enrollment without medical approval which the Petitioner did not avail herself of insofar as the group health self-insurance plan is concerned. The Petitioner did not apply for the overall group health self-insurance plan because she was already covered under that plan through her husband's coverage and not because, as Petitioner maintains, that it was never explained that she had 30, or actually 31, calendar days from January 11, 1980 to apply for that plan. Indeed it was explained to her as Ms. Thurston established and Respondent admits receiving the handbook further explaining the time limit to apply for that coverage without medical approval. She signed a receipt acknowledging her responsibility to read that pamphlet or manual and ask for clarification, if needed, concerning coverage benefits and she admitted that she did not read it. Thus it is found that at the time of her initial employment all pertinent insurance benefits and entitlements were explained to the Petitioner both verbally and in writing and she failed to avail herself of the automatic coverage provision referenced above in a timely way, for the reason stated above. In any event, on July 28, 1980 the Petitioner elected to submit a new enrollee form which was submitted with a medical statement form requesting participation in the State Plan. After correspondence with the State Plan administrator requesting additional medical information, on October 22, 1980 the Department of Administration, by letter, advised the Petitioner that she had not been approved by the plan administrator and she was denied coverage for medical reasons. Accordingly, on October 24, 1980 the Petitioner enrolled in the South Florida Group Health, Inc. Plan which is a health maintenance organization plan (HMO) and she was allowed enrollment in that plan without regard to her current medical condition. The Petitioner remained enrolled in the HMO and requested and was granted leave of absence without pay from her employment position commencing May 29, 1981. Her employing agency advised her that it was her individual responsibility to forward premium payments for the HMO health insurance premiums as well as the state life insurance coverage herself. In other words, she was to pay by cash or her own personal check for this coverage during the time she was not being paid by the state, that is, the premiums for that coverage were not being payroll deducted because she was temporarily off the payroll. Her employment with the State did not lapse during this period commencing May 29, 1981, rather she remained employed, but was on leave without- pay status. The Petitioner knew of her responsibility to pay the premiums for the HMO coverage and the state life insurance coverage itself during the period she was on leave of absence without pay as evidenced by the check she and her husband submitted in June 1981 to pay the premiums on her state life insurance coverage. The Petitioner and her husband moved from Miami to Fort Myers during early June 1981 and the Petitioner remained on leave of absence without pay. When her husband changed employment and moved to the Fort Myers area in June 1981 the Petitioner was a covered dependent under the health insurance coverage available to her husband through his new employment. I n August 1981 the South Florida Group Health, Inc., the HMO in the Miami are of which Petitioner was a member, terminated the Petitioner's health insurance coverage effective August 1, 1981 due to the Petitioner's failure to pay the premiums for that coverage. Shortly thereafter the Petitioner interviewed with personnel officials of HRS in District 8 in Fort Myers and obtained an employment position as a district intake counselor for District 8. She became an active payroll employee of HRS in District 8 by transfer in August 1981. Before the effective date of her transfer the Petitioner was interviewed by Judy Graham, an HRS employee assigned to process her transfer from her former active employment in District 11 in Miami. The Petitioner failed to advise Judy Graham at the time of the interview of her HMO coverage, merely inquiring of Ms. Graham concerning the details of continuation of her state life insurance coverage and concerning her credit union membership. Thereafter, more than 31 calendar days after the effective date of her transfer, (August 24, 1981), indeed, in excess of two years later, the Petitioner completed a new enrollee form again and applied for the state employee's group self- insurance plan benefits. The Department of Administration denied the Petitioner participation upon the determination that she was not medically approvable for insurability by the Plan's claims administrator, Blue Cross and Blue Shield of Florida, Inc. In any event, the Petitioner's continuous employment with the state and with HRS had never lapsed since she was initially hired January 11, 1980. She was merely on inactive/leave-without-pay status as a state employee from May 29, 1981 until August 24, 1981, as that relates to any right to a second 31-day open enrollment period.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Administration denying the Petitioner's requested enrollment in the State Group Health Insurance Plan without medical approval. DONE AND ORDERED this 31st day of December, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1985. APPENDIX The following specific rulings are made on the Proposed Findings of Facts submitted by the parties: Petitioner's Proposed Findings of Fact Accepted. Accepted, but subordinate and not material to disposition of the issues at bar. Accepted, but subordinate and not material to disposition of the issues at bar. Accepted, but subordinate and not material to disposition of the material issues at bar. Rejected as not being in accordance with the competent, substantial, credible testimony and evidence adduced. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as not being in accordance with the competent, substantial, credible testimony and evidence adduced. Accepted, but this Proposed Finding of Fact in itself is not dispositive of the material issues of fact and law resolved herein. Accepted. Rejected as not in accordance with the competent, substantial, credible evidence and testimony adduced. Accepted. Accepted. Respondent's Proposed Findings of Facts The Respondent failed to number its Proposed Findings of. Fact, therefore its Proposed-Findings of Fact will be specifically ruled upon in the order the various paragraphs containing its Proposed Findings of Fact were presented. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Curtright C. Truitt, Esq. Post Office Box 2706 Ft. Myers, Florida 33902 Richard L. Kopel, Esq. Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether Mr. Wills is entitled to reimbursement from the State Group Health Insurance Plan for health services provided by an otolaryngologist and a speech pathologist for vocal therapy.
Findings Of Fact The State of Florida makes available to employees several health insurance programs. One of the options available to employees is the State of Florida Employees Group Health Self Insurance Plan. Employees may also enroll in a number of different health maintenance organizations depending upon the county in which the employee resides. The Employees Group Health Self Insurance Plan was established by the Legislature, and its benefits are described in the Benefit Document. The Plan as a whole is administered by Blue Cross-Blue Shield, which did not write the terms of the Plan. When an employee chooses to participate in the Plan, the State contributes to the employee's insurance cost by paying a portion of the premium for the employee in order to be covered by the Plan. Mr. Wills is employed by the State of Florida as the Chief Assistant Public Defender for the Seventeenth Judicial Circuit in Broward County, Florida. Mr. Wills is a Senior Trial Attorney in the Public Defender's Office and a senior administrator who needs his voice to carry on his professional duties. He was a member of the Plan at all times relevant to this proceeding. The case revolves around whether Mr. Wills is entitled to reimbursement for expenses he incurred when he was diagnosed in June 1990 as having a vocal chord lesion, also known as a contact ulcer or granuloma of the vocal fold, and participated in a course of medical treatment for this condition. For example, Mr. Wills would attempt to speak, but portions of words could not be heard. Mr. Wills ultimately was treated by Dr. W. Jarrard Goodwin. Dr. Goodwin is a specialist in diseases of the ear, nose and throat (i.e., an otolaryngologist), and teaches at the University of Miami School of Medicine. Dr. Goodwin was of the view that the lesion was caused by the mechanical banging together of the vocal chords, and that surgery was not an appropriate treatment for him. Instead, he prescribed an antibiotic and three weeks vocal rest. He had a second consultation with Mr. Wills on August 14, 1990, at which time Dr. Goodwin referred Mr. Wills to Donna S. Lundy, a speech pathologist in the Department of Otolaryngology at the University of Miami Medical School, for voice therapy. A contact ulcer or granuloma can result from the pitch of the voice being too high or too low, from speaking too loudly, or from not breathing from the diaphragm. All of these can be treated with behavioral voice therapy through exercises, either to raise or lower the pitch of the voice, or to breathe from the diaphragm and relax the vocal chords in order to decrease effort and strain near the lesion. Mr. Wills saw Ms. Lundy for sessions of vocal therapy at Dr. Goodwin's office on August 11, September 13, October 5, November 11, and December 27, 1990, and Mr. Willis practiced the exercises he was given between appointments. Even if Mr. Wills had had surgery, i.e., a stripping of the vocal chords, an alternative treatment for the contact granuloma, he still would have had vocal therapy following that surgery to modify his vocal habits to prevent a recurrence of the lesion. As a result of the vocal therapy, Mr. Wills' condition has improved, and he no longer suffers from the contact granuloma. Speech therapy treats abnormalities of speech production, language formulation and processing, such as articulation disorders, stuttering, language delay, and disorders of neuromuscular control. It is not the same as voice therapy. Five claims for health services were submitted on behalf of Mr. Wills by Donna S. Lundy, under procedure code 92507. Code 92507 on the approved fee schedule covers "Speech, Language or Hearing Therapy, with Continuing Medical Supervision, Individual." Dr. Goodwin, also submitted one claim under procedure code 92507 for services provided to Mr. Wills on August 14, 1990. All such claims were rejected by the Department. The State of Florida, Employees' Group Health Self Insurance Plan benefit document contains exclusions. The applicable exclusion, according to the Department, is Section VII(Q): VII. Exclusions The following exclusions shall apply under the plan: * * * * Q. Occupational, recreational, edu-cational, or speech therapy, orthoptics, biofeedback, contra-ceptives, telephone consultation, cardiac rehabilitation exercise programs, or visits for the purpose of exercise by bicycle, ergometer or treadmill. Benefit Document, page 46. There is no further explanation of the term "speech therapy" found in exclusion VII(Q) in any other portion of the Benefit Document. The approved fee schedule for the Group Health Self-Insurance Plan has a procedure code for "speech, language or hearing therapy, with continuing medical supervision, individual." That the approved fee schedule has such an entry at all is an indication that there are circumstances where speech language or hearing therapy is covered. Otherwise, the entry would be wholly inconsistent with the Department's position that Section VII(Q) flatly prohibits any payment for "speech therapy". Ms. Lundy is licensed speech-language pathologist in the State of Florida. Unless a person qualifies for licensure as a speech-language pathologist, a person may not describe him or herself using a number of terms. Among these forbidden terms are "speech pathologist", "speech therapist", "language pathologist", "voice therapist" and "voice pathologist". Section 468.1285(1)(b), Florida Statutes, (1990 Supp.). The Department relies upon the definition for the practice of speech-language pathology in the Professional Practice Act, Chapter 468, Part I, Florida Statutes (1990 Supp.), to argue that any services provided by a licensed speech-language pathologist must necessarily fall within the exclusion found in Section VII(Q) of the Benefit Document. The Department's argument that because the term "speech therapy" is not defined in the Benefit Document, it should determine the meaning of the term by looking to see how the term "speech-language pathology" is defined in Section 468.1125(7)(a), Florida Statutes (1990 Supp.), the professional practice act for speech-language pathology, is unpersuasive. There was no testimony that the Benefit Document was written with all definitions found in various professional practice acts in mind. There is certainly no proof that the Legislature crafted the miscellaneous professional practice acts in Chapter 468 with an eye towards using the definitions in those acts for determinations under the Employees' Group Health Self Insurance Plan. The Benefit Document and the professional practice acts have little or nothing to do with each other, and neither shed light upon terms used in the other.
Recommendation It is recommended that the Secretary of the Department of Administration enter a Final Order requiring the Division of Employees' State Insurance to pay all claims submitted by Donna S. Lundy and the claim of Dr. Goodwin which have been denied. The Benefit Document does not clearly exclude voice therapy for a contact granuloma, and in the absence of a clear exclusion, the law requires that those claims be paid. RECOMMENDED this 24th day of December, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5324 Rulings on findings proposed by the Department: Adopted in Finding 1. Adopted in Findings 2 and 3. Rejected as unnecessary. Adopted in Finding 3. Adopted in Finding 4. Discussed in Finding 5. Rejected as unnecessary. See, Conclusions of Law. Adopted in Finding 9. Adopted in Finding 10. Rejected. See, Conclusions of Law. Adopted in Finding 5. Rulings on findings proposed by Mr. Wills, treated as if the paragraphs had been numbered: Adopted in Finding 3. Adopted in Findings 3 and 4. Adopted in Finding 5. Adopted in Finding 7. Generally adopted in Finding 9. Generally adopted in Finding 5. Adopted in Findings 5 and 9. COPIES FURNISHED: Steven Michaelson, Esquire 9326 Northwest 18th Drive Plantation, FL 33322 John M. Carlson, Esquire Department of Administration 438 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
