The Issue Whether Petitioner's laser in situ keratomileusis (LASIK) surgery is a covered service for which he is entitled payment/reimbursement under the State of Florida's Self-Insured Group Health Insurance Program.
Findings Of Fact At all times pertinent to these proceedings, Petitioner was a state employee covered under the State of Florida Self- Insured Group Insurance Plan. The provisions of the "State Employees' PPO Plan Group Health Insurance Plan Booklet and Benefit Document" applies to the issues herein. The State of Florida's third party administrator, Blue Cross and Blue Shield of Florida denied prior authorization for Petitioner's LASIK surgery. The Division of State Group Insurance, which administers the State Plan, upheld Blue Cross and Blue Shield's denial of prior authorization by proposed agency action letter dated July 11, 2000. Petitioner timely requested a formal hearing. Petitioner proceeded with LASIK surgery without prior authorization. Petitioner here requests that charges for his LASIK surgery be reimbursed by the State Plan. LASIK surgery is a treatment in which part of the cornea of each eye is removed and reshaped to correct myopia (nearsightedness) or hyperopia (farsightedness). Prior to his LASIK surgery, Petitioner suffered from myopia, a refractive disorder of the eyes. Petitioner's myopia was not the result of an accident or cataract surgery. The evidence is unrefuted and substantial that Petitioner experienced difficulty in his job because of his vision. He had difficulty reading multiple computer screens and documents. His difficulty was acute when shifting his gaze back and forth from one computer screen to another or back and forth from a document to a computer screen. Petitioner's employment performance suffered as a result of his vision problems, and he got headaches. Petitioner attributed his difficulty to the inadequacy of his vision, as corrected by glasses. He tried both bifocals and "sophisticated bifocals," but he felt he lost considerable peripheral vision with any glasses. Petitioner consulted with two optometrists, Dr. Douglas Jones and Dr. Thomas Barnard. Prior to the LASIK surgery, Dr. Jones and Dr. Barnard agreed that Petitioner's vision was functionally correct to 20/20, with glasses. However, both suggested that LASIK surgery would be beneficial for Petitioner. Only this information was provided with Petitioner's authorization request to Blue Cross and Blue Shield for prior authorization. Petitioner is 50 years old and had the LASIK surgery approximately two months prior to the formal hearing. Petitioner's ability to function in his job improved after the LASIK surgery. By his testimony at formal hearing, Dr. Barnard testified that one of Petitioner's eyes was not correctable with glasses exactly to 20/20 but was, in fact, "20/20-", which meant that Petitioner may have been able to read most of the letters on the 20/20 line but may have missed one or two of them. Nonetheless, Dr. Barnard agreed that this status or diagnosis is considered functional. Dr. Barnard also testified that any person with myopia is going to have some loss of peripheral vision with the use of glasses, depending on the prescription. Further, he testified that as we age the difficulty in getting a good correction at different distances is just something that people have to put up with after the age of forty. Dr. Barnard has a preference for LASIK surgery over glasses. According to Dr. William Cobb, ophthalmologist, most people with myopia benefit from LASIK surgery when it is successful. The designation of "20/20" vision means that the judgment of acuity of vision is made at a distance of 20 feet. In ophthalmology, all visions are measured by 20/20, which gives a basis for comparison. Glasses can be made to allow for acuity of vision at any stated distance for any specific function. Most people using a computer must have trifocals or special lenses to use with the computer. If trifocal lenses are not adequate, then progressive lenses can be used for multiple focusing distances. In Dr. Cobb's opinion, Petitioner should have been able to obtain glasses to solve his visual problems at specific distances. LASIK surgery corrects vision in the same functional way as glasses, in that it is performed to focus the eyes at one specified distance. The pertinent provision of the "State Employees' PPO Plan Group Health Insurance Plan Booklet and Benefit Document" provides: The following services and supplies are excluded from coverage under this health insurance plan unless a specific exception is noted. Exceptions may be subject to certain coverage limitations. * * * 11. Services and supplies for treating or diagnosing refractive disorders (vision errors which can be corrected with glasses) including eye glasses, contact lenses, or the examination for the prescribing or fitting of eye glasses or contact lenses, unless required because of an accident or cataract surgery that occurred while covered by this health insurance plan. This health insurance plan will cover the first pair of eye glasses or contact lenses following an accident to the eye or cataract surgery. The Division of State Group Insurance has uniformly interpreted this provision to exclude any payment for contact lenses, glasses, or LASIK surgery. The only exception to the exclusion is the stated provision for glasses or contact lenses following cataract surgery or following an accident that affected vision. State employees may purchase supplemental insurance that covers vision care and provides reimbursement for LASIK surgery.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, issue a final order determining that Petitioner is not entitled to payment for LASIK surgery and dismissing his petition. DONE AND ENTERED this 11th day of December, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 11th day of December, 2000. COPIES FURNISHED: Kenneth E. Gesser Apartment D-23 4100 Southwest 20th Avenue Gainesville, Florida 32607 Julie P. Forrester, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the amended administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Harold Sydney Rose (Rose) was, at all times material hereto, licensed in the State of Florida as a life and health insurance agent and health insurance agent. During all such times, Rose did business as the Harold Rose Insurance Agency, an unincorporated business, in Dade County, Florida. Here, petitioner has filed an amended administrative complaint against Rose which charges him with certain misconduct which was alleged to have arisen while he was an agent for Union Bankers Insurance Company (Union Bankers) and United American Insurance Company (United American). Count I of the complaint concerns allegations that Rose failed to remit premiums and applications solicited on behalf of Union Bankers, and misappropriated and converted such monies to his own use and benefit or unlawfully withheld such monies from the insurer and insured. Counts II-V of the complaint allege similar conduct which purportedly occurred during the course of his agency relationship with United American. The Union Bankers transaction Pertinent to Count I, Rose's agent's contract with Union Bankers, dated September 27, 1984, provided: 5. SOLICITATION The agent is hereby authorized to solicit and procure applications for individual life insurance, accident and health annuity policies and to promptly deliver such applications to this Company. The Company shall have the right at all times to reject any application submit- ted for insurance without specifying any reason for rejection. * * * 11. COLLECTION OF MONEY The Agent is not authorized to receive any money due or to become due to the Company ex- cept the initial first-year premiums on appli- cations obtained by/or through him in exchange for the Conditional Receipts furnished by the Company. Any and all monies or securities re- ceived by the Agent for and on behalf of the Company shall be securely held by the Agent in a fiduciary capacity and shall not be used by the Agent for any personal or other purposes whatsoever, but shall be immediately paid over to the Company. While the literal terms of his agreement with Union Bankers would imply that Rose was required to hold all premiums in trust and immediately remit them to the company, his agreement with the company actually permitted him to retain his commission from the first-year premium and remit the balance (referred to as the "net") to the company, along with the application, within ten days of receipt. If the company declined to issue the policy, then Rose's account was debited for the amount he had retained. During early 1992, as a consequence of complaints from applicants, Union Bankers became concerned that Rose was not timely submitting applications and premiums due the company on policies he solicited. As a consequence, by letter of April 3, 1992, Union Bankers terminated Rose's agency agreement, effective April 18, 1992. Subsequently, following repeated demands by Union Bankers that Rose submit to it all applications and premiums he had received on behalf of the company, the Rose Agency submitted new business reports, together with applications and partial premium payments to the company. This information was received about the end of June or early July 1992, and reflected significant delays in forwarding applications and premiums to Union Bankers. Regarding such delays, the competent proof demonstrated the following: On March 16, 1992, Rose solicited an application on behalf of Union Bankers from Dennis Rehman, as well as an application from his wife Gail, for health insurance, and received two checks from them, one for $1,073 and the other for $409, representing the first year premium. These checks were deposited to the account of the Harold Rose Agency at Florida International Bank on March 18, 1992. Notwithstanding, Rose did not forward the application to Union Bankers until June 1992, and then only upon complaint of the applicants and demand by Union Bankers. When submitted, the application was accompanied by a check from the Harold Rose Agency to Union Bankers for $787.00, the correct net premium, and the policies were issued in July 1992. On March 23, 1992, Rose solicited an application on behalf of Union Bankers from Clarence Medlin for home health care insurance, and received a check in the sum of $953.00, representing the first year premium. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 25, 1992, and then only upon complaint of the applicant and demand by Union Bankers. When submitted, the application was accompanied by a check from the Harold Rose Agency to Union Bankers for $142.95, which was significantly less than the net commission of $333.55 that was due. Nevertheless, Union Bankers underwrote the application. On April 1, 1992, Rose solicited an application on behalf of Union Bankers from Sally Goldhirsch for home health care insurance, and received from her the sum of $1,033.00, representing the first year premium. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 25, 1992, and then only following demand by Union Bankers. When submitted, the application was accompanied by a check from the Harold Rose Agency to Union Bankers for $206.60, which was significantly less than the net commission of $361.55 that was due. The ultimate disposition of the Goldhirsch application does not appear of record. On April 7, 1992, Rose solicited an application on behalf of Union Bankers from Morris Olkes for home health care insurance, and received a check in the sum of $1,986, representing the first year premium. The check was deposited to the account of the Harold Rose Agency at Florida International Bank on April 13, 1992. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 25, 1992, and then only upon complaint of the applicant and demand by Union Bankers. When submitted, the application was accompanied by a check from the Harold Rose Agency to Union Bankers for $397.20, which was significantly less than the net commission of $695.10 that was due. Nevertheless, Union Bankers underwrote the application and delivered a policy to Mr. Olkes. Upon review of the policy Mr. Olkes declined to accept it, and Union Bankers refunded his $1,986 premium. On April 3, 1992, Rose solicited an application on behalf of Union Bankers from Cora Burghard for a home health care insurance policy, and received from her the sum of $1,033, representing the first year premium. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 25, 1992. When submitted, the application was accompanied by a check drawn on the Harold Rose Agency account for $206.00, which was significantly less than the net commission of $361.55 that was due. The ultimate disposition of the Burghard application does not appear of record. On May 1, 1992, Rose solicited an application on behalf of Union Bankers from Daisy Schumann for a home health care insurance policy, and received from her the sum of $557.00, representing the first year premium. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 29, 1992. When submitted, the application was accompanied by a check drawn on the Harold Rose Agency account for $111.40, which was significantly less than the net commission of $194.95 that was due. The ultimate disposition of the Schumann application does not appear of record. On April 15, 1992, Rose solicited an application on behalf of Union Bankers from Grace DuMond for a home health care policy, and received from her the sum of $1,075.00, representing the first year premium. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 29, 1992. When submitted, the application was accompanied by a check drawn on the Harold Rose Agency Account for $215.00, which was significantly less than the net commission of $376.25 that was due. The ultimate disposition of the DuMond application does not appear of record. On April 24, 1992, Rose solicited an application on behalf of Union Bankers from Bernard Bernard for a home health care policy and received from him the sum of $1,588.00, representing the first year premium. Notwithstanding, Rose did not forward the application to Union Bankers until on or about June 29, 1992. When submitted, the application was accompanied by a check drawn on the Harold Rose Agency account for $317.60, which was significantly less than the net commission of $555.80 that was due. The ultimate disposition of the Bernard application does not appear of record. Finally, in August 1992, Union Bankers received an inquiry on behalf of Mr. and Mrs. Anthony Feanny regarding the status of applications they had made for Union Bankers health insurance through the Harold Rose Agency. In this regard, the proof demonstrates that the Feannys were solicited by Allen James, an agent with the Harold Rose Agency, who secured applications for health insurance from them on three occasions, and received checks for the first year premium. The first check was for $2,021.00, dated February 20, 1991, and deposited to the Harold Rose Agency account on February 20, 1991; the second check was for $3,521.00, dated February 28, 1991, and deposited to the Harold Rose Agency account on March 8, 1991; and the third check was for $1,929.67, dated September 23, 1991, and deposited to the Harold Rose Agency account on October 3, 1991. According to Mr. James, the Feannys agreed for the agency to delay sending their applications to Union Bankers until a claim pending with another insurance company had been resolved. Whether that claim was ever resolved does not appear of record; however, the record does demonstrate that none of the three applications or any premiums were ever submitted to Union Bankers, and that, considering the balances maintained in the Harold Rose Agency account discussed infra, those premium funds were not maintained in trust. In August 1992, Union Bankers refunded the Feannys the premiums they had entrusted to the Harold Rose Agency. The premium refunds and premium credits made by Union Bankers to various applicants or insureds were, along with other transactions, reflected on Rose's account current statement with the company. As of August 31, 1991, Rose's statement reflected a debit balance of $21,534.48, and as of January 31, 1994, through the company's application of renewal commissions due Rose to the debit, a debit balance of $11,491.98. Absent additional debits, Rose's account with Union Bankers will be current within 15 to 18 months by applying his renewal commission to the outstanding debt. United American and the Rosenbaum, Jaffer, Lichtman and Rutkin transactions (Counts II-V) Counts II-V of the amended administrative complaint allege that Rose failed to remit premiums and applications solicited on behalf of United American from Fannie Rosenbaum (Count II), Adah S. Jaffer (Count III), Arnold Lichtman (Count IV) and Judith and Norman Rutkin (Count V), and misappropriated and converted such monies to his own use and benefit or unlawfully withheld such monies from the insurer and insured. Pertinent to these counts, the proof demonstrated that on November 19, 1991, United American and Rose, as agent, entered into a vested commission contract. That contract provided: APPOINTMENT AND RELATIONSHIP The Agent shall be a General Agent of the Com- pany and is authorized to solicit in person or through Sub-agents, applications for Insurance. Such applications are subject to Company ap- proval. The Agent may collect only the initial premium payments due on such applications. The relationship between the Agency, or any Sub-agent, and the Company shall be that of an independent contractor only, and not a rela- tionship of employer and employee. Any initial premiums collected by the Agency, or any Sub- agent, shall be held in trust by the Agent, on behalf of the Company, and the Agent shall have a duty to promptly remit the premiums to the Company, less applicable commissions due the Agent. The general transactions of busi- ness including eligibility requirements of ap- plicant will be governed by Company rules which may be changed, altered, or amended from time to time by the Company. COMMISSION COMPENSATION The Agent shall receive as full compensation for any expenses, as well as all services pro- vided by the Agent, the commissions on pre- miums paid on policies issued on applications secured by the Agent or any Sub-agents, as specified and set forth in the Schedule(s) of Commissions shown below. The Agent shall im- mediately remit to the Company all premiums collected by the Agent, or any Sub-agents, less the Agent's initial commission thereon. The Company may discontinue any plan or policy and/or change commissions on existing or new policies, but such change shall not affect any commissions due Agent on policies issued prior to the effective date of the change. The Com- pany shall determine the commission on any policy which is determined to be a replacement or conversion of any existing policy. * * * SCHEDULE OF COMMISSIONS - FLORIDA HEALTH PLANS: First Year Commissions Medicare Supplements - 34 percent, except no commissions will be paid on any portion of the premium for Part B deductible coverage. Other Health Plans - 54 percent, plus re- gistration fee (less $1 on monthly and quar- terly modes). Renewal Years Commissions Medicare Supplements - 17 percent, except renewal years commission will not include any portion of rate increases and no commissions will be paid on any portion of the premium for Part B deductible coverage. Other Health Plans - 12 percent Here, like Rose's agreement with Union Bankers, his agreement with United American permitted him to retain his commission from the first-year premium and remit the net to the company, along with the application. If the company declined to issue the policy, then Rose's account was debited for the amount he had retained. As to Count II, the proof demonstrates that on May 28, 1992, Rose received from Fannie Rosenbaum of Miami Beach, Florida, a check made payable to United American in the sum of $1,637.00 as payment of the initial premium on a United American health insurance policy Rose had solicited. This check was deposited to the account of the Harold Rose Agency at Florida International Bank on May 29, 1992, but no application or premium was remitted to United American. Following inquiry regarding the status of her application and proof of payment of the premium to Rose, and consistent with Ms. Rosenbaum's request of June 22, 1992, United American credited her account with the sum of $1,617.00 to renew a preexisting policy and refunded $20.00 to her. Subsequently, Ms. Rosenbaum requested the return of the balance of the premium ($1,617.00) and it was refunded to her by United American. By letter of July 10, 1992, United American demanded of Rose the premium he had been paid on its behalf by Ms. Rosenbaum, as well as an explanation for its non remittance. On September 22, 1992, United American received from the Rose Agency a partially completed application on Ms. Rosenbaum, but has yet to receive any part of the premium or any explanation for Rose's failure to timely remit the application and premium. As to Count III, the amended administrative complaint alleges that on or about June 9, 1992, Rose solicited and sold to Adah S. Jaffer a United American Health insurance policy, and received from Adah S. Jaffer a check made payable to United American in the sum of $3,475.00 as payment of the initial premium on the policy. The complaint further alleges that Rose failed to remit any premium or submit the application to United American, but misappropriated and converted the funds to his own use. At hearing, the deposition testimony of Adah S. Jaffer, marked as petitioner's exhibit 3, was not received into evidence. Notwithstanding, the testimony of Rose demonstrates that he took an application for insurance from the Jaffers, although its nature does not appear of record, and other competent proof demonstrates that a check dated June 9, 1992, drawn by Harold G. Jaffer and payable to United American in the sum of $3,425 was deposited to the account of the Harold Rose Agency at Florida International Bank on June 10, 1992. Moreover, the proof demonstrates that in September 1992, United American received an inquiry from the Jaffers regarding the status of their application and, upon review, discovered that no application or premium had been received by the company. Upon inquiry, the Rose Agent sent United American an incomplete application on the Jaffers, which was received September 22, 1992, but no premium. Subsequently, United American refunded the Jaffers $3,425, but Rose, despite demand, has failed to remit any part of the Jaffer premium to United American. As to Count IV, the proof demonstrates that on July 10, 1992, Rose received from Arnold Lichtman of Miami Beach, Florida, a check made payable to United American in the sum of $1,352 as payment for the first year premium on a United American Medicare Supplemental Insurance policy Rose had solicited. This check was deposited to the account of the Harold Rose Agency on July 15, 1992, but no application or premium was remitted to United American. Following inquiry by Mr. Lichtman on September 11, 1992, regarding the status of his application, United American discovered that no application or premium had been received by the company. Upon inquiry, the Rose Agency forwarded a partially completed application for Mr. Lichtman to United American on September 22, 1992, but no premium. In the interim, United American refunded Mr. Lichtman $1,352. Notice of the refund and request for reimbursement was mailed to Rose, but he has failed to remit any part of the premium to United American. As to Count V, the proof demonstrates that on July 23, 1992, Rose received from Judith Rutkin of Miami, Florida, a check made payable to United American in the sum of $1,352 as payment for the first year premium on a United American ProCare Plan F Medicare Supplemental insurance policy Rose had solicited. This check was deposited to the account of the Harold Rose Agency at Florida International Bankers on July 27, 1992, but no application or premium was submitted to United American. Mr. Rutkin, who became increasingly concerned about nondelivery of his wife's policy, and lack of communication from Rose, called United American on September 29, 1992, only to learn that no application or premium had been submitted to them. At United American's request, Mr. Rutkin wrote them a letter on October 9, 1992, explaining the circumstances and enclosing a copy of his wife's cancelled check. On October 15, 1992, United American reimbursed Mrs. Rutkin for her premium deposit. Notice of the refund and a request for reimbursement was mailed to Rose, but he has failed to remit any portion of the premium to United American. United American terminated Rose's agency agreement September 2, 1992, for his failure to remit premiums, and demanded reimbursement of the policy premiums. To date, Rose has failed to reimburse United American for the premium refunds it made. Unlike his account with Union Bankers, Rose's account with United American has no outstanding policies upon which Rose could receive renewal commissions and against which United American could apply the debt due it from Rose. The Harold Rose Agency bank account The Harold Rose Agency bank account at Florida International Bank is described as a business checking account, and Harold S. Rose is designated as the owner and sole signatory. As of June 31, 1992, the account had a negative balance (overdrawn) of $798.53, as of July 31, 1992, a positive balance of $1,092.11, as of August 31, 1992, a negative balance of $1,165.55, and as of the date of hearing a positive balance of $2.62. Rose's response According to Rose, he has delegated all office duties at his agency to two secretaries, and they are responsible for processing all applications, handling all finances (bank deposits, check writing, and review of bank statements), responding to inquiries from insurance companies, or anything else that has to do with office operations. Moreover, although he is the sole signatory on the agency bank account, Rose has authorized his secretaries to sign his name and, according to Rose, they sign all the checks on that account. Essentially, Rose suggests he has absolutely nothing to do with any office duties, but restricts his activities to selling and servicing his agents, and that when he takes an application and premium from a client he merely turns it in for processing with his secretaries like any other agent working for him. Rose further averred that he never intentionally withheld applications from the companies and never took any part of a premium that was not his. Notwithstanding, Rose offered no cogent or credible explanation for why the subject applications and premiums were not submitted to Union Bankers and United American in the regular course of business, why client inquiries repeatedly went unanswered, why repeated demands from the insurance companies were necessary to get the applications, why the net premiums due the companies were not held in his account, in trust, until disbursed according to law, or why the premiums have not been paid to the companies on demand or at any time to date. Under the circumstances, Rose's explanation and attempt to distance himself from responsibility for the operations of his agency are rejected as improbable and lacking credibility, and he is found to have intentionally deferred submitting applications and premiums to Union Bankers and United American, and to have diverted premiums entrusted to his agency for other than their intended purposes. 1/ But for the instant case, no complaint has been filed regarding Rose since his licensure as an insurance agent in the State of Florida in 1950, and no prior disciplinary action has been initiated by the Department of Insurance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which revokes respondent's licenses and eligibility for licensure in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994.
The Issue The issue is whether respondent's license as a health insurance agent should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Michael Halloran, was licensed and eligible for licensure as a health insurance agent by petitioner, Department of Insurance and Treasurer (Department). When the events herein occurred, respondent was licensed to solicit health insurance on behalf of National States Life Insurance Company (NSLIC) and Transport Life Insurance Company (TLIC). He was also under contract with Diversified Health Services of St. Petersburg, Florida until that firm terminated his agency appointment on May 5, 1989. This proceeding involves the sale by respondent of various health insurance policies to four customers in January and February 1989. In 1987, Raymond H. Koester, a Largo resident, purchased from respondent a supplemental Medicare policy for both him and his wife. Their first policy was issued by American Integrity. A year later, respondent persuaded the Koesters to replace that policy with one issued by Garden State Insurance Company on the ground the latter policy represented an "improvement" over their existing policy. On January 10, 1989 respondent met with the Koesters for the purpose of selling them new health insurance coverage. During their meeting, respondent advised the Koesters that a new NSLIC policy would provide unlimited custodial and home health care, a type of coverage desired by the Koesters. Relying upon respondent's representation, the Koesters agreed to purchase two new policies. They filled out an application and paid Halloran $2,628 which was the premium for the first year. When the application was completed, respondent answered "no" to the question of whether the new policies were intended to replace existing coverage. This was a false representation. In June 1989 the Koesters learned that they had a problem with their new policies. This advice was conveyed to them by petitioner's investigator who advised them that the policies sold by Halloran loran did not provide any custodial or home health care benefits. Had the Koesters known this, they would not have purchased the insurance. On January 18, 1989 respondent visited Grace Miller, an elderly resident of Venice, Florida, for the purpose of selling her a health insurance policy. At that time Miller had an existing policy in force since 1983 which provided supplemental Medicare coverage. Respondent advised Miller that her existing coverage was inadequate and that more coverage was needed. More specifically, Halloran represented that a new NSLIC policy would supplement her basic Medicare coverage and increase her overall health insurance coverage. Based on that representation, Miller agreed to purchase a replacement policy issued by NSLIC. As it turned out, the policy sold to Miller was of little or no value to a Medicare recipient, such as Miller, and simply filled in the gaps on a major medical policy. Had Miller known this to begin with, she would not have purchased the policy. Respondent also persuaded Miller to purchase a long-term care policy from TLIC. She allowed respondent to fill out the application using information from her old policy. Without telling Miller, respondent misrepresented on the application her date of birth as December 2, 1921 when in fact she was born on December 2, 1911, or ten years earlier. By doing this, Halloran was able to reduce Miller's premium from $1,159.92 to $441.72. Had Miller known that she was responsible for paying a much higher premium, she would not have purchased the policy. On February 25, 1989 respondent accepted another check from Miller in the amount of $773.00 for an unknown reason. At about the same time, respondent submitted to NSLIC an application for a medical-surgical expense policy dated the same date purportedly executed by Miller In fact, Miller had not executed the policy and her signature was forged. NSLIC declined to issue a new policy to Miller since she already had a policy of that type in effect. On January 20, 1989 respondent visited Gertrude Simms, an elderly resident of Fort Myers. Simms desired to purchase a hospital expense insurance policy with a provision for dental insurance coverage. Simms desired such coverage because she had a medical condition that required her to have her teeth cleaned frequently to avoid an infection. Respondent was aware of this condition. Nonetheless, Halloran prepared an application with NSLIC for a limited medical-surgical expense insurance policy which did not provide any dental coverage. Respondent accepted a $1,100 check from Simms which he represented to her was the first year's premium. In fact, the first year's premium was only $506. Although respondent was supposed to return to Simms' home to explain the policy provisions, he never returned. At about this same time, TLIC received an application on behalf of Simms for a long-term care insurance policy bearing the signature of respondent as agent. However, Simms had no knowledge of the application and did not wish to purchase such a policy. The information contained in the TLIC application misrepresented Simms' age so that the premium was lower than it should have been. Although TLIC issued a policy and sent it to respondent, Halloran never delivered it to Simms. On February 1, 1989 respondent visited Velma Sonderman, who resided in Venice, Florida, for the purpose of selling her a health insurance policy. She had become acquainted with respondent through Grace Miller, who is referred to in finding of fact 4. Sonderman was then covered by a supplemental medicare insurance policy issued by United American Medicare. According to Sonderman, respondent gave a "snow job" and represented he could sell her better coverage through NSLIC. Sonderman agreed to purchase a new policy for supplemental medicare coverage to replace her existing policy and signed an application filled in by respondent. However, the application submitted by respondent was for a NSLIC limited benefit health insurance policy rather than the medicare supplement insurance policy Sonderman believed she was purchasing. Respondent also convinced Sonderman to purchase a long-term nursing home care policy issued by TLIC. When filling out the application on her behalf, but without telling Sonderman, respondent misrepresented Sonderman's birth date as July 11, 1915 instead of the correct date of July 11, 1911. By doing this, Sonderman's premium was reduced from $999.36 to $599.04 per year.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's license as a health insurance agent be REVOKED. DONE and ENTERED this 4 day of April, 1990, in Tallahassee, Florida. DONALD ALEXANDER 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 4 day of April, 1990. APPENDIX Petitioner: 1-3. Substantially used in finding of fact 1. 4-17. Substantially used in findings of fact 4, 5 and 6. 18-29. Substantially used in findings of fact 9 and 10. 30-33. Substantially used in findings of fact 2 and 3. 34-45. Substantially used in findings of fact 7 and 8. 46. Substantially adopted in finding of fact l. Copies furnished to: Honorable Tom Gallagher Insurance Commissioner Plaza Level, The Capitol Tallahassee, FL 32399-0300 James A. Bossart, Jr., Esquire 412 Larson Building Tallahassee, FL 32399-0300 Mr. Michael Halloran 2519 McMullen Booth Road Clearwater, FL 34621 Donald A. Dowdell, Esquire Department of Insurance Plaza Level, The Capitol Tallahassee, FL 32399-0300
The Issue The issue is whether Petitioner received a Medicaid overpayment in the amount of $11,077.65 for claims filed between April 15, 1998, and December 31, 2001.
Findings Of Fact Respondent is the agency responsible for administering the Florida Medicaid Program. One of its duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients. Petitioner is a licensed chiropractor in the State of Florida. His Medicaid provider number is No. 3801578-00. At all times relevant here, Petitioner provided services to Medicaid patients pursuant to a valid Medicaid provider agreement. Therefore, Respondent was subject to all statutes, rules, and policy guidelines that govern Medicaid providers. Specifically, Petitioner was required to follow the guidelines set forth in the Medicaid Coverage and Limitation Handbook and the Medicaid Reimbursement Handbook. Additionally, Petitioner was required to maintain all "Medicaid-related records" that supported his Medicaid invoices and claims and to furnish those records to Respondent upon request. In 1997 and until April 1998, Petitioner's advertisement in the yellow pages of the Panama City, Florida, telephone book invited the public to make an appointment for a "free spinal exam," which specifically included two X-rays, if medically necessary. The advertisement indicated that Petitioner's office accepted patients with major medical insurance, workers' compensation insurance, and Medicare and Medicaid coverage. The advertisement did not specifically exclude Medicare and Medicaid patients, but specifically stated that the free spinal exam did not include further examination, treatment, or workers' compensation and personal injury cases. However, Petitioner's subsequent advertisements in the telephone book specifically included Medicaid as a type of case that Petitioner excluded from the offer of free services. The original and subsequent advertisements further stated as follows: Our office policy: The patient and any other person responsible for payment has the right to cancel payment, or be reimbursed for payment for any other service, exam, or treatment which is performed as a result of and within 72 hours of responding to the ad for the free service, exam or treatment. ($99.00 value) Respondent's investigator, Julie Canfield-Buddin, saw the advertisement excluding Medicaid patients as recipients of the free services. After confirming that Petitioner was a Medicaid provider, Ms. Canfield-Buddin performed an audit of Petitioner's paid Medicaid claims between April 15, 1998, and December 31, 2001. The audit revealed that Petitioner had not provided the advertised free services to Medicaid patients. In other words, Petitioner had received Medicaid reimbursements for initial office visits and X-rays of new patients who were Medicaid eligible. Petitioner received reimbursements for these services even though Medicaid policy prohibits payments to providers for services that are given to non-Medicaid patients free of charge. In April 2002, Respondent sent Petitioner a preliminary audit report. The preliminary report indicated that for the period beginning April 15, 1998, up to and including December 31, 2001, Petitioner had received $13,522.02 for certain claims that were not covered by Medicaid. The report included a request for Petitioner to send Respondent that amount for the Medicaid overpayment. After receiving the preliminary report, Petitioner's office contacted Ms. Canfield-Buddin, stating that Petitioner had some issues with the denied claims. Ms. Canfield-Buddin responded that Petitioner should state his concerns in writing and furnish Respondent with any additional medical documentation that would serve to reduce the overpayment. Petitioner sent Ms. Canfield-Buddin a letter dated April 25, 2002. Petitioner did not send Respondent any additional medical documentation with the letter to substantiate his position regarding the denied claims. Additionally, Petitioner did not provide Respondent with any written office policy that delineated any difference in the services provided to Medicaid and non-Medicaid patients. In a final audit report dated May 9, 2002, Respondent informed Petitioner that he had been overpaid $13,522.02 for Medicaid claims that, in whole or in part, were not covered by Medicaid. The final audit report included a request for Petitioner to pay that amount for the Medicaid overpayment. Ms. Canfield-Buddin subsequently received a telephone call from Petitioner's office on May 30, 2002. She received Petitioner's written request for a formal administrative hearing on June 3, 2002. After receiving Petitioner's request for a hearing, Ms. Canfield-Buddin reviewed Petitioner's account statements that related to the Medicaid overpayments. Based on that review, Ms. Canfield-Buddin reduced the amount of overpayment to $11,077.65. The revised overpayment reversed denied charges for X-rays of Medicaid patients in excess of the two X-rays that should have been provided free of charge pursuant to the offer for free services. For example, Petitioner was reimbursed for services provided to B.A. on August 10, 2001. These charges included an initial office visit under the Current Procedures Terminology (CPT) code 99203, two X-rays under the CPT code 7240, two X-rays under the CPT code 72072, and two or three X-rays under the CPT code 72100. The final audit denied reimbursement for all charges except the two or three X-rays under CPT code 72100. The revised overpayment reversed the denied charges for two X-rays under the CPT code 72070. The end result was that Respondent denied Petitioner reimbursement only for the initial office visit and two X-rays that ordinarily would have been provided free to non-Medicaid patients. Medicaid allows reimbursement for services equal to the lesser of the Medicaid fee or the provider's usual and customary charge. Petitioner's advertisement offered free services to the public at large with certain exceptions. Petitioner cannot exclude Medicaid patients from that offer by also excluding patients with personal injury or workers' compensation claims. All patients who are not Medicaid eligible are non-Medicaid patients regardless of their payment source. Just because Petitioner excludes free services to non-Medicaid patients with personal injury and workers' compensation claims, does not mean that he can deny those free services to Medicaid patients when his usual and customary practice is to provide the services free to non-Medicaid patients. Some of the denied charges at issue here allegedly involve spinal manipulations that Petitioner claims he performed on Medicaid patients during their initial office visits. Medicaid reimbursement policy requires a spinal manipulation performed during an initial office visit under a 99203 CPT code for a new patient visit to be included as part of the examination conducted during that visit. Medicaid does not allow Petitioner to be separately reimbursed for a spinal manipulation performed on the same day of service as an initial office visit. Petitioner did not include more than two X-rays or any spinal manipulations in his offer of free services for any patient. When a patient has an initial office visit in response to Petitioner's offer of free services, Petitioner first takes the patient's history, performs an examination, and reviews the first two free X-rays. Depending on the results of the evaluation, Petitioner may or may not advise the patient that additional X-rays and/or a spinal manipulation are medically necessary. Petitioner then allows the patient to arrange for payment of those services with his office staff. If the patient is non-Medicaid eligible and is able to pay for services, Petitioner proceeds to take the additional X-rays and/or to perform the spinal manipulation immediately or during a subsequent visit with payment due as arranged. If a non-Medicaid patient requires subsequent examinations during the course of treatment, Petitioner bills the patient or his or her insurance carrier for those services. If the patient is Medicaid eligible, Petitioner may either proceed with taking the X-rays and/or performing the spinal examination immediately, knowing that he will not be separately reimbursed for the spinal manipulation, or make an appointment for the Medicaid patient to return on another day so that he can be reimbursed for the spinal manipulation. In any event, Medicaid regulations do not allow reimbursement for further examinations within a three-year period. During the hearing, Petitioner testified that some of the denied charges for initial office visits under the CPT code 99203 included spinal manipulations that he never intended to be free and that he did not provide spinal manipulations as a free service to non-Medicaid patients. Petitioner's testimony in this regard is not credited for two reasons. First, he did not produce any medical documentation to support his testimony as to any Medicaid patient receiving a spinal manipulation during an initial office visit. Second, he did not identify any such patient during his testimony. Respondent performs Medicaid audits after a provider renders services. Therefore, it is essential for providers like Petitioner, who contest denied claims, to be able to substantiate their billing with appropriate documentation. Such documentation must be created at the time of service, maintained pursuant to statutory and rule requirements, and furnished to Respondent upon request. Petitioner never responded to Ms. Canfield-Buddin's request for medical documentation to substantiate Petitioner's challenge to the denied claims. Additionally, Petitioner testified that the services he performed for some Medicaid patients were not equivalent to the free services he performed for non-Medicaid patients because they often involved a higher level of service, including additional services, tests, or examinations. According to Petitioner, some of the Medicaid patients required more extensive screening and counseling that consumed more of Petitioner's time. Despite this testimony, Petitioner admitted that the histories he took of Medicaid patients and non-Medicaid patients were basically the same. Petitioner testified that the difference in the level of service provided to all patients varied based upon the individual patients and did not depend on whether they were or were not Medicaid patients. He had no written or unwritten guidelines or policies that limited the scope of screening or level of service in an initial office visit for either type of patient. Petitioner's testimony that the level of services provided to Medicaid patients differed from the level of services offered to non-Medicaid patients is not persuasive. Once again, Petitioner failed to provide the required medical documentation to support his testimony or to identify in his testimony Medicaid patients who required a higher level of service. Moreover, Petitioner knew, when he made his offer of free services, that he would not be able to claim reimbursement for services provided to Medicaid patients that were not separately reimbursable even if Petitioner was entitled to exclude Medicaid patients from the offer. This includes cases where a Medicaid patient may have required a high level of service in terms of the time expended during the screening or a spinal manipulation during the initial office visit. Petitioner provides free services to members of his family. The provision of free services to family does not establish that Petitioner had a usual and customary practice of providing free services. At times, Petitioner treats police officers and indigent persons free of charge. However, Petitioner does not publicly advertise that he treats these patients free of charge because he does not want to be overrun with people taking advantage of the offer. There is no persuasive evidence that Petitioner routinely treats police officers covered by private health insurance and indigent patients covered by Medicaid free of charge. Therefore, it cannot be said that Petitioner's usual and customary practice is to furnish services to these patients free of charge. A Medicaid provider is allowed to use the CPT code 99203 for a new patient visit once per recipient every three years. Petitioner's offer of free services for non-Medicaid patients allows them one free office visit and two free X-rays regardless of the passage of time. According to Petitioner, this means that Respondent's interpretation of Medicare regulations would entitle a Medicaid patient to the free services every three years whereas a non-Medicaid patient would not be so entitled, showing yet another difference in the services provided to Medicaid and non-Medicaid patients under the offer of free services. However, Petitioner's testimony in this regard is not persuasive because it is not based on medical documentation or testimony showing that Petitioner ever treated a Medicaid patient as a new patient more than once.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order determining that Petitioner owes $11,077.65 for Medicaid reimbursement overpayments. DONE AND ENTERED this 18th day of November, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 November, 2002. COPIES FURNISHED: Anthony L. Conticello, Esquire Grant P. Dearborn, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Hal Cowen ChiroNetwork Health Care Centers 127 West 23rd Panama City, Florida 32405 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
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
The Issue Petitioner is charged in a two count administrative complaint with violating Sections 626.311(4), 626.561(1), 626.611(4), 626.611(5), 626.611(7), 626.611(8), 626.611(9), 626.611(10), 626.611(13), 626.621(4), 626.621(6), 626.9521, 626.9541(1)(a)1. and 626.9541(1)(b), F.S.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a Life and Health Agent, as a General Lines Agent, as a Health Agent, and as a Dental Health Care Contract Salesman. He was so licensed at all times material to the pending charges. Except as described hereafter, Respondent was, at all times material, licensed in Florida to solicit health insurance on behalf of United American Insurance Company (United). Respondent regarded all of his problems with United set out infra. as a money dispute with a carrier. At all times material, Respondent was the principal of Group Health Agency, an insurance agency doing business in Jacksonville, Florida. COUNT I On March 22, 1990, Respondent visited the home of Mary Torrent for the purpose of soliciting health insurance. As a result of this visit, Mary Torrent purchased one United Hospital and Surgical Care insurance policy and tendered to Respondent a check payable to Group Health Agency in the sum of $2,140.00. The Respondent signed the application as submitting agent and gave Mary Torrent a receipt showing the name of the insurance carrier as United. The same day, March 22, 1990, Respondent deposited Ms. Torrent's check to Group Health Agency's account number 019-604313, which he controlled. In May, 1990, Ms. Torrent initiated a conversation with Respondent because she was concerned that she did not have health care coverage. She had never received a policy from United. Respondent had told her in March that it took four to six weeks for her policy to be sent or delivered to her. Ms. Torrent was apparently aware that her initial receipt from Respondent did not "bind" the policy and that coverage could be rejected by the carrier after the Respondent submitted her application to the carrier or that her coverage might actually go into effect before she physically received her policy, but she had expected to have a policy in her hands or at least to know the results of her application within six weeks of signing the application and submitting her check on March 22, 1990. When she contacted him in May, Respondent readily admitted to Ms. Torrent that he had lost her March 22, 1990 application in the "sloppiness" of his office; he admitted this again at formal hearing. United's procedure was that Respondent could wait up to 30 days after the date a customer signed an application before Respondent had to submit that customer's application to United. However, if an application were over 30 days old, United's procedure did not permit the agent to submit it. Under those circumstances, United required the agent to get the customer to sign a new application with updated answers to pre-existing health conditions. There is no evidence that at any time material Ms. Torrent understood that Respondent intended to hold her first application 30 days before submitting it to the carrier. However, Respondent did explain to her in May 1990 the need for a new application. Ms. Torrent agreed to re-apply and forgave the Respondent for not timely submitting her first application. On May 30, 1990, Ms. Torrent signed the new application and Respondent again gave her a receipt for the money she had paid him back in March. Ms. Torrent did not ask for her money back and no new payment was required of her. She told Respondent that she did not want a refund of the money she had paid him more than 60 days before and that she wanted the security of knowing that she was covered by health insurance. Having considered all the evidence and the weight and credibility of the respective witnesses, it is found that as of May 30, 1990, Respondent could not have helped but know that Ms. Torrent was anxious about getting the health insurance she had now applied for twice because she had no other health insurance coverage. Respondent did not specifically make known to Ms. Torrent that even after May 30, 1990 he still would be holding her application for up to 30 days before submitting it to the carrier. Respondent received notification on May 31, 1990 that United had terminated him as of that date, but he still waited until June 28, 1990 to forward Ms. Torrent's application to United. Respondent testified that he legitimately could write Ms. Torrent's second application on May 30 because he was not terminated by United until May The United representative, Jim Sherritt, did not refute Respondent's testimony that such an arrangement was standard operating procedure with the carrier, and Petitioner presented no evidence that such an arrangement is contrary to industry practice. On June 28, 1990, United received the May 30, 1990 Torrent application from Respondent and issued policy no. 6130-015, on July 5, 1990. There is no evidence that United ever considered refusing coverage to Ms. Torrent just because Respondent had been terminated in the interim between Ms. Torrent signing the second application and Respondent submitting it to the carrier. It should be noted that, despite Respondent's admonition to Ms. Torrent that it usually takes four to six weeks after making an application before a customer receives a policy, Ms. Torrent's policy was mailed to her by United about five weeks after she re-applied through Respondent on May 30, 1990 and approximately one week after Respondent sent her application to United. Nonetheless, she got her policy and her coverage in the time frame promised by Respondent the second time around. Along with the application, United received Respondent's check in the sum of $853.60. This amount represented the net difference remaining after Respondent's commission had been deducted from the gross amount tendered to Respondent on March 22 by Ms. Torrent. Respondent's testimony and that of the United representative concur to the extent that for the approximately seven years that Respondent had written insurance for United, they had had an arrangement at the bank which permitted Respondent to legitimately deposit to his agency account checks made out to United and to subsequently tender back to United the net premium after deducting his commission from the gross premiums he collected. In this case, Ms. Torrent's check had been made out to Respondent's agency for the gross premium, and Respondent had run it through his agency account and issued his agency check to United for the net premium. Mr. Sherritt, on behalf of United, did not refute this practice either, although he stated that United preferred that the agent submit customers' gross premium checks made out to United. In this case, Respondent's net premium check for $853.60 was returned to United due to insufficient funds in Respondent's checking account. It is not clear whether Respondent's bank notified him that his check to United for $853.60 had been returned for insufficient funds, but it is clear that United did not specially and directly notify him by a separate money request or request to replace the bad check. Respondent first learned of the check's status when he saw his July statement from United. Such monthly statements to the Respondent agent from the carrier were standard operating procedure between Respondent and United and are common industry practice. They show, on a rolling basis, month by month, how much money each party owes the other. If, at any time, the agent owes anything to the carrier, there is a request for payment printed at the bottom of the account. Respondent's July statement from United showed the $853.60 premium as a debit on Respondent's account with United. The standard request for payment was printed at the bottom of the account statement. Mr. Sherritt acknowledged that 20% of United's agents at one time or another have checks returned for insufficient funds or run a debit balance on their accounts for one reason or another. Sometimes United would resubmit to the bank checks from its agents returned for insufficient funds, and other times United just debited that agent's existing account with United. In a previous year, United had permitted Respondent to run a debit balance for an entire year before terminating him and then reinstated him three or four days later. In the instant case, Respondent's bad check was not resubmitted to the bank. United merely retained Respondent's check and debited his account with the company. Respondent in part relied on United's past mode of doing business with him. Respondent also admitted at formal hearing that, although he knew he owed United money as of the end of July, 1990, he did not send a new, fully negotiable check for the $853.60 Torrent premium to United. He testified that he did not make good his check to United because, having been terminated, he was afraid that if he did so, the carrier would not credit his commissions on renewal premiums as old customers paid those premiums directly to United. Instead, Respondent elected to let his account with United run a debit of varying amounts at least until May, 1991, when renewal premium commissions cleared all of his negative balance. United did not start to pay Respondent a positive balance, though, until September, 1991. Consequently, United also retained some of Respondent's earned monies for four months. United never returned Respondent's check despite restitution having finally been made. Respondent denied any intent to defraud anyone. However, Respondent's explanation of why he did not pay United the premium due to the carrier did not include any explanation of why his check was returned for insufficient funds or provide an equitable reason why Respondent should be permitted the use of Ms. Torrent's money without her receiving any insurance coverage until July 5, 1990 or an equitable reason why United should be required to service Ms. Torrent's policy without any premium for approximately ten months. COUNT II Ms. Pebble Amena was a long-time customer of Respondent. Having observed the candor and demeanor of Ms. Amena at formal hearing, it is noted that she is a delightful elderly lady who is somewhat vague on several points at issue. However, having weighed and considered the testimony of both Respondent and Ms. Amena, it is found that the following occurred. Ms. Amena had a history of signing up for health policies, paying her initial premium, and then needing reassurance that she had done the right thing. She had repeatedly sought such reassurance by cancelling a policy so as to get her premium money back. She also had let policies lapse so that they would automatically cancel and she would then sign up for another policy and would repeat the whole scenario again. In January, 1990, a previous health insurance policy with United through Respondent as agent had lapsed due to Ms. Amena's non-payment of premiums, but she still had two months of similar coverage remaining on a Blue Cross-Blue Shield policy. On January 9, 1990, Respondent went to the home of Ms. Amena for the purpose of trying to get her to renew the lapsed United policy. As a result of this visit, Ms. Amena purchased a United American Medicare Supplement Policy and tendered to Respondent a check payable to Group Health Agency in the sum of $908.00 Because she still had paid-up coverage with Blue Cross-Blue Shield for two months, Respondent suggested that he hold her United application as long as possible to avoid certain dual coverages. He advised her not to renew the Blue Cross-Blue Shield policy. Even though he had sold Ms. Amena the United policy on the basis of its better nursing home coverage, Ms. Amena agreed to let Respondent hold the application the maximum length of time. On January 10, 1990, Respondent deposited Ms. Amena's check into Group Health Agency account number 019-604313 at Southeast Bank, Jacksonville,. This account is controlled by Respondent. It is undisputed that Ms. Amena later went to Respondent's office and told Respondent that she did not want the United policy and that she wanted her money back. It is also undisputed that during that office visit Respondent tried to talk Ms. Amena into keeping the United policy he had sold her in January because he still felt that he had time to submit the application before it would go stale under United's procedure. Whether this conversation occurred on February 9, 1990, as related by Respondent, or whether it occurred sometime in March, 1990 after Ms. Amena had already begun writing directly to United for a refund, is not entirely clear. Nor is it clear whether or not this type of United policy application would go stale in 30 or 90 days. However, Respondent admitted that he discovered that he had held Ms. Amena's application too long under United's procedure for this type of policy when he thought about it a few days after the meeting with Ms. Amena in his office. Again, Respondent attributed his failure to timely submit Ms. Amena's application to "sloppiness" in his office and also to his "leaving for his farm" for the weekend. Ms. Amena's testimony is clear and strong that she did not agree during their meeting at Respondent's office to let Respondent submit the January 9, 1990 application anyway. She is equally clear and strong in her testimony that she did not agree to take a different United Health policy instead. Respondent's testimony waffled between asserting that he believed that their conversation had resulted in Ms. Amena agreeing to "keep" the policy she had applied for in January or that she would reapply for a different, but similar, United policy when he could get around to writing it up. Despite the foregoing discrepancy in their testimony, some things are not disputed: Respondent had not yet submitted Ms. Amena's application to United when she told him she did not want it; United had always prohibited using an application when it was stale; Ms. Amena signed no new application when she met with Respondent at his office; and Respondent refunded her no premium at that time. Upon these undisputed facts, it is found that Ms. Amena's testimony that at their meeting all she wanted was her money back and no United policy in place, is more credible than Respondent's testimony as to the result of this meeting. Respondent further testified that somehow, at this meeting, he formed the opinion that Ms. Amena had renewed and continued to be covered by her Blue Cross-Blue Shield policy, despite the original information from her that the Blue Cross-Blue Shield policy would lapse in February 1990, and despite his previous instructions to her not to renew it. Respondent further testified that because of his perception that she was covered by another company, he chose not to rush to get a newly signed United application from Ms. Amena, even though this time he was specifically instructed by United's home office that the originally applied-for policy could not be issued without a more recent update of her application. Respondent related several futile attempts to contact Ms. Amena to make out a fresh United application after their office conversation in February or March 1990 because by then he had recognized that the time period for submittal had run. Respondent's description of his futile search for Ms. Amena is not plausible because Ms. Amena has maintained the same residence address at all times material, despite occasional visits elsewhere and intermittent hospital stays. If, by agreement, he had been sincerely pursuing the preparation of a fresh or substitute United policy application or if he intended to return her $908, there is no reason Respondent could not have mailed Ms. Amena his check, communicated with Ms. Amena by mail, or otherwise have located her by due diligence between the date in February or March when he last saw her and May 31, 1990 when United terminated him as its agent. It is also noted that Respondent did not testify that he had searched for Ms. Amena in order to refund her money, but had searched for her only to make out a new application. He also did not offer his May 31, 1990 termination as an excuse for not getting a new application signed by Ms. Amena. Instead, he stated that his closing his office on May 31, 1990 occasioned the confusion. Ms. Amena testified that she had repeatedly tried to contact Respondent to get her money refunded. Respondent concurred that after May 31, 1990, Ms. Amena could not have found him because he had closed his office. Respondent never submitted Ms. Amena's original application or her premium to the carrier, nor did Respondent ever refund the premium to Ms. Amena. In October, 1990, United refunded $908 directly to Ms. Amena since she had a receipt from Respondent for that amount. United debited Respondent's account with them for the $908 in October 1990, and Respondent carried a negative balance of varied amounts with United until May, 1991 for the reasons and in the manner related in Findings of Fact 18-20, supra. So long as United had a negative balance against Respondent, the monthly account statements sent to Respondent by United continued to request payment to United. In Respondent's favor it should be pointed out that there is no direct or clear evidence whether Ms. Amena was or was not covered by Blue Cross-Blue Shield during all of the period involved in Count II of the amended administrative complaint. Therefore, there is insufficient evidence to show that Ms. Amena went "bare" for insurance coverage at any time due to any error or omission by Respondent. Respondent denied any intent to defraud anyone. Respondent was remorseful about his delay in placing Ms. Amena's first application. However, Respondent's explanations do not provide any equitable reason United should have been "out" $908 between October 1990 and May 1991 for refunding a premium it had never received on an insurance application Respondent had never submitted to United while Respondent enjoyed the use of Ms. Amena's money from March 1990 onward.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Section 626.621(4) F.S. under Count I of the Administrative Complaint; Finds Respondent guilty of violating Sections 626.611(7), (9), and (10), and 626.621(4) F.S. under Count II of the Administrative Complaint; Finds Respondent not guilty of violating all other violations alleged in both counts of the Administrative Complaint; and Assesses a $1,000 fine, a ninety day suspension of Respondent's several insurance licenses and places him on probation upon such terms as the Department of Insurance shall deem appropriate for six months. RECOMMENDED this 5th day of May, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5760 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner's proposed findings of fact are accepted as modified to conform to the greater weight of the credible record evidence as a whole. Respondent's PFOF: Respondent has not followed the approved format for post-hearing proposals as set out in the applicable rules and the post-hearing order. However, all matters therein have been accepted unless they are irrelevant, subordinate, unnecessary, or cumulative, or unless the proposals are not supported by the greater weight of the credible record evidence as a whole, as discussed throughout the recommended order. Legal argument also has not been adopted. COPIES FURNISHED: William C. Childers, Esquire Office of the Treasurer Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Jonathan Earl Horsley, III, pro se 6100 Arlington Expressway Q307 Jacksonville, Florida 32211 Bill O'Neil, General Counsel The Capitol PL-11 Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's claim against her state group health insurance company for services related to a Magnetic Resonance Imaging examination (MRI) should be granted or denied.
Findings Of Fact At all times material hereto, Petitioner was employed by the State of Florida and was a participant in the State of Florida group health insurance plan, which is a self-insured plan administered by the State of Florida in conjunction with the plan's third party administrator, Blue Cross Blue Shield of Florida (BCBSF). This plan is frequently referred to as the PPO Plan, an acronym for preferred provider organization. Prior to April 26, 2002, Petitioner's physician detected a lump in Petitioner's right breast. Petitioner's physician ordered mammography and ultrasound examinations to be performed on Petitioner's right breast. Those examinations were performed on April 1, 2002. Following those tests, Petitioner's physician ordered an MRI examination of the right breast, which was performed on April 26, 2002, and is the procedure at issue in this proceeding. Following that MRI, Petitioner had another mammography and ultrasound for the diagnosis and treatment of breast cancer. Respondent has paid Petitioner's claims for coverage of the mammography and ultrasound examinations. Respondent has denied payment for the professional fee associated with the MRI in the amount of $215.00. Respondent has paid the facility fee associated with the MRI in the amount of $1,705.00. Respondent asserts that the payment of that fee was in error and intends to seek reimbursement for that payment if it prevails in this proceeding. The terms of coverage of the state group health insurance plan are set forth in a document entitled "State Employees' PPO Plan Group Health Insurance Plan Booklet and Benefit Document" (Benefit Document). The Benefit Document (at page 31, paragraph 47 of the section entitled "Services Not Covered By The Plan") specifically excludes the following from coverage: 47. Services and procedures considered by BCBSF to be experimental or investigational, or services and procedures not in accordance with generally accepted professional medical standards, including complications resulting from these non-covered services. The Benefit Document has a section entitled "Definitions of Selected Terms Used By The Plan" beginning at page 49. The definition of the phrase "experimental or investigational services", found at page 51, includes, in pertinent part, the following: . . . any evaluation, treatment, therapy, or device that: * * * is generally regarded by experts as requiring more study to determine maximum dosage, toxicity, safety or efficacy, or to determine the efficacy compared to standard treatment for the condition has not been proven safe and effective for treatment of the condition based on the most recently published medical literature of the U.S., Canada or Great Britain using generally accepted scientific, medical or public health methodologies or statistical practices is not accepted in consensus by practicing doctors as safe and effective for the condition is not regularly used by practicing doctors to treat patients with the same or a similar condition The Benefit Document provides at page 51 that BCBSF and the Division of State Group Insurance determine whether a service is experimental or investigational. The testimony of Dr. Wood established that an MRI of the breast is experimental or investigational within the meaning of the Benefit Document. 2/ MRI examinations of the breast are not reliable diagnostic tools because such examinations result in an unacceptable number of cases where an MRI produces false negative findings that reflect the absence of cancer where cancer is, in fact, present in the breast. According to Dr. Wood, an MRI cannot be relied upon and should not be used to avoid a biopsy of a suspicious mass because a patient would run an unacceptable risk that the detection of cancer may be delayed or missed. Dr. Wood also testified that radiologists in Florida performing services for the state group insurance health plan have been informed of BCBSF's position. Petitioner's doctors did not inform her prior to the examination that the MRI examination would not be covered by her insurance plan.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a final order denying coverage for the MRI claims submitted by Petitioner. DONE AND ENTERED this 17th day of February, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of February, 2003.
Findings Of Fact Petitioner was employed with the Collier County Health Department, Department of Health and Rehabilitative Services, on March 9, 1973. Petitioner's date of birth is November 26, 1916. On October 1, 1980, Petitioner's medical insurance coverage was entered into the payroll system under the Spouse Program, State of Florida plan. The proper amount of premiums under the Spouse Program were paid to Blue Cross Blue Shield from October 1, 1980, up to and including June, 1983. On November 26, 1981, Petitioner reached the age of 65. Under the State plan, coverage at age 65 is automatically reduced and changed to Medicare Supplement Coverage. In order to have remained fully covered, Petitioner would have had to apply for the Medicare insurance prior to reaching age 65, which he did not do. Due to both spouses being covered, there was no change in policy premium deductions even after Petitioner reached age 65 and his State coverage was reduced. The Blue Cross Blue Shield (State program) paid several claims of Petitioner subsequent to his 65th birthday and through December, 1982. On March 8, 1983, Petitioner was admitted to the hospital and on March 11, 1983, heart bypass surgery was performed. Respondent normally notifies the employee and employing agency of the coverage change prior to the employee's 65th birthday, as required by Rule 22K- 1.16, F.A.C. In this case, Respondent did not do so due to a failure in its computer program. Petitioner could have determined that he was required to apply for Medicare coverage had he read in detail a copy of the plan's benefit booklet furnished to all State employees in 1978.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent direct its insurer to pay Petitioner's claims arising from his March, 1983, hospitalization. DONE and ENTERED this 2nd day of September, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1983. COPIES FURNISHED: Mr. John H. Adams 2596 Linwood Avenue Naples, Florida 33962 Daniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
The Issue Whether the Petitioner was entitled to enrollment for his son in the State of Florida Group Health Self Insurance Plan for the January 1, 2008, to December 31, 2008, plan year and, if so, whether he is entitled to reimbursement of $543 for student health insurance coverage that was added to his son's college tuition bill.
Findings Of Fact Petitioner, Bashere Bchara, has been employed by the Florida Department of Transportation for the past 9 years including the period October 2007 through December 2008. He is and was, on all relevant dates, entitled to state employees’ benefits, including participation for himself, his spouse, and eligible dependents in the State Group Health Insurance Program. On October 16, 2007, during the open enrollment period, the Petitioner accessed his state employee benefits from his computer to change his dental coverage, as he was required to do because of a change in State providers. Mr. Bchara believes that an error in the People First computer program, that is used to manage state human resources data, caused his son, Dani Bchara, to be removed from health insurance coverage as his dependent. He also said it was his first time using the computerized People First program to elect or change benefits. There is no dispute that Dani Bchara, who had been covered during the previous plan year, continued to be an eligible dependent. Mr. Bchara's witness, Michael Smith, testified that he too had problems trying to use People First to change dental plans. He found the People First computer screens confusing and disorganized. Dani Bchara was, at the time, a 22-year-old college student. As a part of his tuition and fees, Florida State University charged his account $543 for health insurance. In May 2008, after a claim for reimbursement for health expenses for Dani Bchara was rejected, Mr. Bchara, contacted plan insurer, Blue Cross Blue Shield; plan contract administrator, People First; and then Respondent, the Department of Management Services, Division of State Group Insurance (Respondent or DSGI). DSGI has the responsibility for administering the insurance program. See § 110.123, Fla. Stat. (2008). After reviewing his complaint, Sandi Wade, a benefits administrator for DSGI, notified Mr. Bchara that his son was not covered by the state health plan. She also determined that he could not add his son, at that time, due to the absence any qualifying status change, as required by federal and state law. There is no allegation nor evidence of a qualifying status change that would allow the addition of Mr. Bchara's son to his coverage. Ms. Wade was not aware of any other reports of possible computer glitches of the type Mr. Bchara believes he experienced during the open enrollment period in October 2007. James West, a manager for People First testified that, during the enrollment period in October 2007, computer screens for health insurance and dental insurance were entirely different. Each was displayed only after the appropriate tab was chosen. In addition, Mr. West noted that a "summary last step" had to be chosen and the final summary screen allowed employees to view changes from all prior screens before selecting the option to "complete enrollment." Mr. West examined logs of computer transactions on October 16, 2007. The logs showed that Mr. Bchara, using his People First identification number changed his health insurance by deleting coverage for his son. Mr. West reviewed correspondence logs that indicated that Mr. Bchara was sent a notice dated October 27, 2007, confirming the changes he had made to his benefits. The notice was sent from the Jacksonville service center of Convergys, the contract operator of the People First system, to an address that Mr. Bchara confirmed was correct. Mr. Bchara testified that he did not receive the letter. Mr. West testified that the letter was not returned, as confirmed by an electronic tracking system for mail. Scott Thompson, Director of Application Development for Convergys, testified that his records also show every time Mr. Bchara logged into the People First system using his identification number and password. The logs also show that his health plan was changed when he accessed the system on October 16, 2007. Based on the evidence in the computer records and logs that Mr. Bchara, albeit unintentionally, deleted coverage for his son in the group health insurance program, there is insufficient evidence of computer or human error attributable to Respondent. In the absence of sufficient evidence of any errors by DSIG or its agents, or any evidence of a qualifying status change in Mr. Bchara's employment or his family, DSIG correctly rejected the request for retroactive enrollment of his son in the state group health insurance.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a final order denying Petitioner, Bashere Bchara, retroactive health insurance coverage for an additional dependent under the state plan for the 2008 plan year. DONE AND ENTERED this 16th day of January, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2009. COPIES FURNISHED: Sonja P. Matthews, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Bashere Bchara 10178 Southwest 53rd Court Cooper City, Florida 33328 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The basic issue in this case is whether the Petitioner is entitled to a waiver of the limitations in the state group health self insurance plan regarding pre-existing conditions during the first 12 months of coverage under the plan.
Findings Of Fact Based on the stipulations of the parties, on the testimony presented at the hearing, and on the exhibits received in evidence, I make the following findings of fact. The Petitioner was first employed by the Department of Transportation as a Clerk Typist Specialist on October 31, 1986. As a new employee, the Petitioner was entitled to select health insurance under the state group health self insurance plan or with a participating health maintenance organization (HMO). The state group health self insurance plan and the HMO's each have different benefits and premiums. The Petitioner's direct supervisor is Ms. Gwen Molander. On October 30, 1986, the day prior to her first day of employment, the Petitioner met with her supervisor to sign the employment paperwork. On that day Ms. Molander called the Department of Transportation personnel office in Lake City for the purpose of finding out whether the state group health self insurance plan would cover pre-existing allergy conditions of the Petitioner's son. Ms. Molander specifically asked the Lake City personnel office if the plan would cover the Petitioner's son if the son was under the care of an allergist. The words "pre- existing condition" were not used in the conversation Ms. Molander had with the Lake City personnel office. The Lake City personnel office told Ms. Molander that the Petitioner's son would be covered even if it was not an open enrollment period. The Petitioner authorized a "double-up" deduction so the health insurance would be effective as of December 1, 1986. The Petitioner's son has been covered as a dependent under the Petitioner's health insurance since December 1, 1986. Based on the information from the Lake City personnel office, the Petitioner believed that the state group health self insurance plan would provide coverage for all of her son's medical expenses without any limitation regarding pre-existing conditions. The Petitioner's son had a pre-existing allergy condition for which he received medical treatment in December of 1986 and thereafter. Since December of 1986 the Petitioner has incurred medical bills of approximately $2,000.00 for treatment related to her son's pre-existing allergy condition. The state group health self insurance plan has refused to pay any of the medical expenses related to the treatment of the pre-existing allergy condition of the Petitioner's son. The state group health self insurance plan contains a provision to the effect that "no payment shall be made for pre- existing conditions during the first 12 months of coverage under the Plan." Accordingly, the refusal to pay described above is consistent with the provisions of the state group health self insurance plan. At the time the Petitioner chose to enroll in the state group health self insurance plan, she could also have chosen any of three HMO programs available to state employees in he Gainesville area. Petitioner chose the state group health self insurance plan because of her belief that it provided coverage for her son's pre-existing allergy condition. There is no competent substantial evidence in the record in this case regarding the coverage provided by the three available HMO's, the limitations (if any) on the coverage, or the cost to the employee of such coverage. At the time the Petitioner chose to enroll in the state group health self insurance plan, her employing office did not have any written information regarding the health insurance options available to new employees. There is no evidence that the Petitioner attempted to obtain information regarding health insurance options from any source other than her direct supervisor and the Lake City personnel office. On the insurance enrollment form signed by the Petitioner, dated October 31, 1986, the Petitioner was put on notice and acknowledged that coverage and the effective dates of coverage under the state group health self insurance plan were governed by Rule Chapter 22K-1, Parts I and II, Florida Administrative Code, and by the plan benefit document, "regard-less of any statements or representations made to me. " The Petitioner has previously worked in the insurance field and she is familiar with limitations on coverage for pre-existing conditions.
Recommendation On the basis of all of the foregoing, it is recommended that the Department of Administration issue a final order in this case denying the relief requested by the Petitioner and dismissing the petition in this case. DONE AND ENTERED this 29th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1485 The following are my specific rulings on the proposed findings of fact submitted by both parties: Proposed findings submitted by Petitioner As noted in the introductory portion of the recommended order in this case, the Petitioner's post-hearing submission consists of a letter dated May 12, 1987. Although the letter does not contain any statements which are identified as proposed findings of fact, in light of the lesson taught by Kinast v. Department of Professional Regulation, 458 So.2d 1159 (Fla. 1st DCA 1984), all factual assertions in the letter of May 12, 1987, have been treated as though they were proposed findings of fact. The references which follow are to the unnumbered paragraphs and sentences of the letter of May 12, 1987. First unnumbered paragraph: This is an introductory comment only. Second unnumbered paragraph: First sentence is rejected as a proposed finding because not supported by evidence in the record. Second sentence is a statement of position rather than a proposed finding. Third sentence is rejected as a proposed finding because not supported by evidence in the record. Fourth sentence is a statement of the relief requested rather than a proposed finding. Fifth sentence is rejected as a proposed finding because it is inconsistent with the greater weight of the evidence. Third unnumbered paragraph: This entire paragraph is rejected as proposed findings because it consists of statement of position and argument rather than proposed facts. Proposed findings submitted by Respondent The Respondent's proposed findings of fact are contained in twelve numbered paragraphs in Respondent's proposed recommended order. The paragraph references which follow are to each of those twelve paragraphs. Paragraph 1: Accepted. Paragraph 2: First sentence accepted. Second sentence is rejected in part and accepted in part; first ten words are rejected as not supported by competent substantial evidence in the record. The remainder of the sentence is accepted. Paragraph 3: Accepted. Paragraph 4: Accepted in substance with correction of confused dates and deletion of irrelevant details. Paragraph 5: Accepted. Paragraph 6: Accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: First sentence accepted in substance. Second sentence rejected as not supported by competent substantial evidence. Paragraph 10: Accepted in substance. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as irrelevant due to the fact that no such literature was available at Petitioner's employing office. COPIES FURNISHED: Ms. Juanita L. Resmondo Department of Transportation Maintenance Office Post Office Box 1109 Gainesville, Florida 32602 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
