The Issue The issue presented is whether Petitioner is entitled to a refund of monies paid into his medical reimbursement account.
Findings Of Fact Petitioner has a Ph.D and has been a professor at Florida State University (FSU) since November 2003. Petitioner met his now-wife Veronika in England in September 2004. In the summer of 2005 she quit her job in London and came to Tallahassee. She enrolled in FSU's graduate program to fulfill the conditions of her visa. Petitioner attempted to add her to his health insurance coverage claiming that she was a dependent or a "partner," reasoning that since she was living with him she was "effectively" his wife. When required to produce a marriage license, Petitioner was unable to do so. Accordingly, since she was not legally his spouse and, therefore, was not eligible to be covered under Petitioner's benefits, his attempt to include her in his health insurance coverage was unsuccessful. From the beginning of his employment up through the time of the final hearing in this cause, Petitioner has received every year the Department's Benefits Guide for active State employees. He has also received additional information yearly regarding the State's benefits program and options during the annual open enrollment period. In 2005 Petitioner began participating in the State of Florida's pre-tax flexible spending account program by setting up a medical reimbursement account (MRA). Each year he had approximately $600 deducted from his gross salary (pre-tax) to cover medical expenses not covered under his health insurance plan. In 2008 he and Veronika began fertility treatments, incurring approximately $14,000 in bills for these treatments. In April 2008 Veronika became pregnant. Petitioner and Veronika were married on May 7, 2008. Because his marriage was a qualifying status change, he was allowed to add her to his health insurance coverage because she became eligible as his spouse. On approximately May 20, 2008, he took his check to the Human Resources office at FSU to pay the additional charge resulting from converting his health insurance from individual coverage to family coverage. He gave his check to Jackie Williams, who worked in that office and who had contacted him about the need to pay the additional money. On that date he also made arrangements to increase his MRA from $600 to $5,000, with the increased payroll deductions to begin July 1 since he was on a nine-month contract. In December 2008 he submitted a claim for reimbursement from his MRA for the fertility treatments that Veronika underwent prior to their marriage. That claim was denied because the treatments occurred prior to the time that Veronika became an eligible dependent. Since those expenses were not eligible for reimbursement, he next sought to reduce his election of $5,000 for his MRA back down to his normal level of $600. He told other personnel in FSU's Human Resources office that Williams had told him that he could claim reimbursement from his MRA for expenses incurred by Veronika before her marriage to him since the plan year for an MRA was from January through December. Based solely upon Petitioner's assertion that Williams gave him wrong information, other personnel in that office directed a memorandum to People First telling that company, which operates the State of Florida's payroll and employee benefits services, that due to an "agency error" Petitioner's MRA should be reduced to its prior level. That request was also denied because a change in Petitioner's MRA could only be made during open enrollment or because of a qualifying status change, and neither condition applied. Jackie Williams remembers her contacts with Petitioner because Veronika spells her name with a "k," which is an unusual way to spell it. Williams only discussed with Petitioner his health insurance coverage and did not discuss with him his MRA. Petitioner asserts that the Benefits Guide, which he consulted, lends credence to the misinformation he says Williams gave him because it provides in the section describing MRAs: "The entire amount in your account is available at the beginning of the plan year." That sentence, however, speaks only to the issue of the timing of claims filed against the account. It does not speak to the eligibility of expenses claimed. The Benefits Guide is very clear as to who is eligible to receive benefits under the State's employee benefits options. It uses plain language that has not changed from year to year although the page number on which the explanation is given may change. The Benefits Guide for 2008 on page 11, for example, states clearly that all active full-time or part-time State of Florida employees qualify for coverage under the benefits plans described in the Guide plus the employee's spouse and children. Eligibility for reimbursement of expenses is quite different from the time period during which claims for eligible expenses can be made. Although the State's MRA plan year runs from January through December, the expenses of only eligible persons will be covered. Since Veronika and Petitioner did not marry until May 7, 2008, her medical expenses before that date do not qualify for reimbursement from Petitioner's MRA, just as she did not qualify to be added to Petitioner's health insurance coverage until they married. To the extent that Petitioner claims he was misled by Jackie Williams, his argument is not persuasive. First, Petitioner had his Benefits Guide which gave the correct information, and his reliance on one sentence in the Guide which does not refer to eligible persons or eligible expenses is illogical and misplaced. Second, Williams' testimony that she did not discuss his MRA with him and that she remembers her transactions with him because of the unusual spelling of Veronika is credible and was supported by the way both Petitioner and Williams referred to that spelling during her testimony at the final hearing. Veronika's medical expenses incurred before her marriage to Petitioner do not qualify for reimbursement from Petitioner's MRA. Further, Petitioner is not entitled to a reduction in his 2008 MRA contribution due to an "agency error" or a misrepresentation by FSU's Human Resources office because no agency error or misrepresentation was made. Quite simply put, Petitioner herein seeks a benefit of marriage prior to the time he was entitled to enjoy it under both the law and the State of Florida's employee benefits plans.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for a retroactive reduction in his MRA. DONE AND ENTERED this 16th day of September, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2009. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Gavin Naylor 1531 Tallavana Trail Havana, Florida 32333 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Conclusions Having reviewed the Administrative Complaint and the Notice of Intent to Deny letter, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named party pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Notice of Intent to Deny and Administrative Complaint with their Election of Rights form to Dora Home Care Inc. (Composite Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. Upon full execution of this Agreement, Dora Home Care, Inc. shall pay $20,866.00 to the Agency, with $10,000.00 to be paid within thirty (30) days after the entry of the Final Order, and the remainder within six (6) months of the entry of the Final Order. In the event.the entire payment is not paid within 180 days of the entry of the Final Order, Dora Home Care Inc. will pay interest as allowed by law on the unpaid amount. A check made payable to the “Agency for Health Care Administration” 1 Filed August 12, 2013 2:25 PM Division of Administrative Hearings and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. The revocation claim in the Administrative Complaint [AHCA No.: 2012000134; DOAH No.: 13-0840] is withdrawn. 4. The denial of the renewal application [AHCA No.: 2012013492; DOAH No.: 13-0709] is withdrawn and the application shall no longer be denied. If the Agency has not already completed its review of the renewal application, it shall resume its review of the application. ORDERED at Tallahassee, Florida, on this 5 day of Avyeat , 2013. Elizabeth trig ecg Ageficy for Heatth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_copy of this Final Order was served on the below-named persons by the method designated on this [oust Auger » 2013. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 [Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Alba M. Rodriguez Office of the General Counsel _ Administrative Law Judge Division of Administrative Hearings (Electronic Mail) (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Stuart M Lerner Brian J. Perreault, Esq. Lydecker Diaz 1221 Brickell Avenue - 19" Floor Miami, Florida 33131 (U.S. Mail)
The Issue Whether the Department's proposed amendment of Rule 38F- 7.020, Florida Administrative Code, constitutes an invalid exercise of its delegated legislative authority under Section 120.52(8), Florida Statutes, [1996 Supp.], or whether the authority specified in the proposed rule is sufficient for the Department to adopt the proposed rule?
Findings Of Fact The Florida Society of Anesthesiologists is a voluntary, nonprofit association comprised of individual members, each of whom is licensed in the State of Florida to practice medicine. Petitioner, Robert A. Guskiewicz, M.D., is a licensed medical doctor in the State of Florida specializing in anesthesia. Pursuant to Section 440.13(12), Florida Statutes, a three-member panel is charged with the responsibility of determining the schedules of maximum reimbursement for physician treatment of workers' compensation patients. In March 1996, the three-member panel convened and adopted a resource-based relative value scale ("RBRVS") reimbursement system, which, on or about January 3, 1997, the Department published notice of its intent to embody in proposed Rule 38F-7.020, in Vol. 23, No. 1 of the Florida Administrative Law Weekly. A copy is attached and incorporated herein by reference. The proposed Rule lists Sections 440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), 440.13(14), and 440.591, Florida Statutes, as specific authority. The proposed Rule implements Sections 440.13(6), 440.13(7), 440.13(8), 440.13(11), 440.13(12), 440.13(13), and 440.13(14), Florida Statutes. There are no other facts necessary for determination of the matter.
Findings Of Fact In 1975 the Florida Legislature passed the Medical Malpractice Reform Act, Chapter 75-9, Laws of Florida, now codified in Chapter 768, Florida Statutes. Part of this legislative package included the creation of the Fund. This legislation was passed in response to a medical malpractice insurance crisis which arose when the primary underwriter for the Florida Medical Association sought to stop issuing medical malpractice policies in Florida, thus making it difficult, if not impossible, for physicians or hospitals to obtain medical malpractice insurance coverage at reasonable rates. As a result of this problem, many physicians began to practice defensive medicine, curtail or abandon their practices or practice without coverage of any kind. The Fund is a private not-for-profit organization, participation in which is totally voluntary for its member-health care providers. Insofar as Petitioners are concerned, membership in the Fund is but one of several options available to provide legally required evidence of financial responsibility in order to obtain licensure as a hospital facility in Florida. Physicians, hospitals, health maintenance organizations and ambulatory surgical centers who become members of the Fund must maintain at least $100,000 in primary professional liability insurance. Membership in the Fund grants to each participant a limitation of liability above the $100,000 in primary coverage. To the extent that any settlement or judgment exceeds the primary coverage of the participant, it is paid by the Fund without limitation. The Fund is operated subject to the supervision and approval of a board of governors whose membership is required by law to consist of representatives of the insurance industry, the legal and medical professions, physicians' insurers, hospitals, hospitals' insurers and the general public. The Department is charged by statute with certain regulatory functions concerning the Fund. As the law existed in 1980 a base fee for Fund membership was set by statute at $500 for physicians, after an initial $1,000 enrollment fee for the first year of participation, and at $300 per bed for hospital members. The statute required the Department to set additional fees based upon the classifications of health care providers contained in the statute. In the event that base fees are insufficient to pay all claims asserted against the Fund for a given fund year, the Department is empowered, upon request of the Board of Governors of the Fund, to order assessments against Fund participants to meet any such deficiency. Under the original legislation, all classes of health care providers could be assessed unlimited amounts to make up any deficiencies. As a result of legislative amendments which became effective July 1, 1976, the amount which participants, other than hospitals, could be assessed was limited to the amount each Fund member had paid to join the Fund for that particular coverage year. 1976 legislative amendments also required that each fiscal year of the Fund, which runs from July 1 through June 30, be operated independently of preceding fiscal years, and further required that occurrences giving rise to claims in a particular fund year be paid only from fees or investment income on those fees collected for that particular year. Thus, it is entirely possible for the Fund to experience deficits in a given year, and yet hold surplus funds for other years. On March 14, 1983, the Department of Insurance issued a "Notice of Assessment for 1980-81 Fiscal Fund Year" (hereinafter called the "Notice of Assessment). (exh. 20) Notice of this Notice of Assessment was published in the Florida Administrative Weekly, March 25, 1983, Vol. 9, no. 12. The Notice of Assessment announced that the Insurance Commissioner intended to levy and authorize the Fund to collect an assessment in the amount of $23,684,511 from those health care providers that were members of the Fund in fund year 1980-81 (exh. 20). Each of the hospitals named as Petitioners in the Petition for Administrative Proceedings in Case Dos. 83-1067 and 83-1068 were members of the Florida Patient's Compensation Fund during the fund year 1980-1981. (exh. 40; P.H.S. V 1) The chart below contains the following information concerning fund year 1980-81: the amount of the total proposed assessment described in the Notice of Assessment (dated March 14, 1983); the amount of the losses experienced by doctors and hospitals, respectively; the amount of the fees originally paid by doctors and hospitals; and the amount of the proposed assessments for doctors and hospitals; 1980-1981 Fund Year - Total Assessment $23,684,511 DOCTORS HOSPITALS Losses $19,086,800 Losses $29,798,500 Fees Paid 4,299,117 Fees Paid 6,015,827 Assessments 4,322,233 Assessments 18,734,918 (P.H.S. V 9) The Department computed the portion of the assessment to be paid by the different classes of health care providers for the 1980-1981 fund year based upon an "indicated rate method." This method is represented by the following formula: The Department started with the actuarially indicated rate for each class of health care provider as described in the October, 1981 Actuarial Report prepared by Tillinghast, Nelson, et al. This is called the "indicated rate by class." The Department then applied the following formula for each class: Indicated Rate by Class x No. of Members in the Class = Total indicated fees by Class Total Indicated Fees by Class divided by total Indicated Fees for ALL Classes = Percentage of Indicated Fee by Class Percentage of Indicated Fee by Class x Total Expected Loss for ALL Classes = Expected Loss by Class (Expected loss is ALL losses for the fund year including claims previously paid, reserves established on claims asserted and IBNR [incurred but not reported].) (P.H.S. V 12) The "indicated rate method" for allocating assessments among the various classes of health care providers was selected by the Department as the method which most fairly reflected the classifications prescribed in Section 768.54(3)(c), Florida Statutes. The record in this proceeding establishes that this method is the most feasible mechanism for fairly reflecting classifications established by statute, and, at the same time, providing immediate funds necessary to meet all claims against the Fund. (P.H.S. V 13) The difference between the results derived by the "indicated rate method" and the amounts reflected in the Notice of Assessment is due to the application of the statutory cap on assessments against physician members, as applied by the Department of Insurance. (P.H.S. V 14) Exhibit #17 shows (a) the calculations utilized by the Department in spreading the assessments for the 1980-81 fund year, (b) the amount each class would have paid under the "indicated rate method" for the fund year 1980-81 and (c) the amount actually described in the 1980-81 Notice of Assessment of the Department of Insurance. The Notices of Assessment issued by the Department of Insurance for fund years 1980-1981 allocated the "excess assessments" (which could not be applied to physician members because the 768.54(3)(c)'s limitation on the amount physicians could be assessed) among the other classes of health care providers based upon their percentage of "expected losses." (P.H.S. V 16) The amounts of the assessments sought by the Fund, and described in the Notices of Assessment, were calculated by the Fund by using the following formula: Total fees paid during the Fund Year + Investment Income attributable to the Fund Year Expenses allocated to that Fund Year Amount paid on claims for that Fund Year Amount reserved for all known claims for that Fund Year. (P.H.S. V 17) The fees ordered by the Department of Insurance and collected by the Fund plus the interest income generated by such fees for fund year 1980-81 are inadequate to cover claims against the Fund for that year. (P.H.S. V 19) Petitioners, for purposes of this proceeding, do not contest: (a) the method by which the Fund establishes reserves; (b) the amount of the reserves established for any individual claim file; or (c) the amount of the total deficit described in the Notices of Assessment dated March 14, 1983 for fund year 1980-1981. Nonetheless, Petitioners do not concede that the Fund needs all of the money described in the Notice of Assessment dated March 14, 1983 at this time. (P.H.S. V 33,34) The record in this cause establishes that as of March 14, 1983, there existed a deficiency in the Fund's account for the 1980-1981 fund year of at least $23,684,511 for the payment of settlements, final judgments and reserves on existing and known claims. Approximately $19,405.00 of this deficit is directly attributable to one judgment - Von Stetina v. Florida Medical Center. This was a malpractice judgment against a hospital which has been affirmed on appeal by the First District Court. An appeal has been filed in the Florida Supreme Court. (exh. nos. 1, 2, 18, 19, 26, 27 and 38) In view of the statutory cap on the amounts that may be assessed against physician members of the Fund, the foregoing dollar amounts for assessments for the 1980-81 fund year, and the manner in which they are proposed to be allocated among the remaining classes of health care providers are appropriate. The original fees for the 1980-1981 fund year were set in June of 1980. The Fund by letter dated April 21, 1980 requested that the Department approve an increase in membership fees for physicians and surgeons in the amount of twenty-five (25) percent and a redefinition of rate classes that would move eighteen (18) percent of the physicians and surgeons from Class 3 to Class 2. The Department published notice in the Florida Administrative Weekly and notified interested parties on its mailing lists that a public hearing was to be held on June 2, 1980. This hearing was held pursuant to 627.351, 768.54, and Chapter 120, Florida Statutes. The purpose of the hearing was identified as "to afford the Fund an opportunity to present evidence and agreement in support of its filing and, further, to afford any affected person an opportunity to present evidence and argument relating to the filing." A hearing was in fact held on June 2, 1980. The Fund presented evidence and argument in support of its request for twenty-five (25) percent increase in fees. No parties argued or presented evidence contending that the fees should have been higher. Subsequent to the hearing, the Department notified the Fund by letter dated June 12, 1980 that its request was approved. Acting on the Department's approval, the Fund sent all prospective members of the Fund for the 1980-81 year membership forms. These forms notified each health care provider what the fees for membership for all health care providers would be. In order to join the Fund each health care provider was required to fill out and sign these forms, thereby agreeing to pay the membership fees and any future assessments which might be levied. Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
Findings Of Fact Case history On January 25, 2006, Renee Michelle Oliver, on behalf of and as parent and natural guardian of Ian David Oliver (Ian), a minor, and Renee Michelle Oliver, individually, filed a petition with the Division of Administrative Hearings (DOAH) to resolve whether Ian qualified for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), and whether the hospital at which Ian was born (Central Florida Regional Hospital) and the participating physician who delivered obstetrical services at Ian's birth (David C. Mowere, M.D.) complied with notice provisions of the Plan. Additionally, the petition raised certain constitutional issues regarding the Plan. More particularly, the petition alleged: This Petition is being filed in compliance with the Circuit Court Order of Honorable James Perry dated January 18, 2006.[1] The Petitioners do not believe this claim falls properly under the NICA Act and file this Petition under protest. Further, Petitioners state that the NICA Act is unconstitutional as written and unconstitutional as specifically applied to this claim. Further, Petitioners state that clear and concise notice was never given to Renee Oliver by either Dr. Mowere or Central Florida Regional Hospital as required by 766.316, Florida Statutes of her rights and limitations under the NICA plan. Additionally, Petitioners would state that the composition of the NICA Board of Directors is biased on its face and it creates an unconstitutional lack of due process and proper access to the Courts. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the petition on January 25, 2006, and on July 28, 2006, following a number of extensions of time within which to do so, NICA gave notice that it was of the view the claim was compensable, and requested that a hearing be scheduled to resolve compensability. In the interim, Central Florida Regional Hospital, as well as Dr. Mowere and Mid-Florida OB/GYN Specialists, P.A. (the practice at which Dr. Mowere was a member, and at which Ms. Oliver received her prenatal care), were accorded leave to intervene. (Order on Compensability and Notice, p. 4, and paragraph 8). Given the issues raised by the petition, a hearing was scheduled for October 10, 2006, to address compensability and notice, and leaving issues related to an award, if any, to be addressed in a subsequent proceeding. § 766.309(4), Fla. Stat.2 The parties were also accorded the opportunity to make a record with regard to the constitutional issues Petitioners had raised. Shortly before hearing, on September 29, 2006, the parties filed a Joint Pre-Hearing Stipulation whereby it was agreed the claim was compensable (a "participating physician" (Dr. Mowere) delivered obstetrical services at Ian's birth and Ian suffered a "birth-related neurological injury"), and that the hospital and the participating physician provided Ms. Oliver a copy of the NICA brochure, as required by Section 766.316, Florida Statutes. Left to resolve, with regard to notice, was whether the NICA brochure "include[d] a clear and concise explanation of a patient's rights and limitations under the plan," as required by Section 766.316, Florida Statutes. Otherwise, the only unresolved matter pending was the opportunity for the parties to make a record on the constitutional issues Petitioners had raised. As heretofore noted in the Preliminary Statement, the hearing was held as scheduled, on October 10, 2006, and on November 16, 2006, an Order on Compensability and Notice was entered. Thereafter, following Petitioners' unsuccessful appeal of that order to the Fifth District Court of Appeal, the parties resolved all issues related to the award, except those related to the amount owing for reasonable attorney's fees and expenses. The award provisions of the Plan relating to attorney's fees and costs Pertinent to this case, Section 766.31(1)(c), Florida Statutes, provides for an award of the following expenses: (c) Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. The claim for attorney's fees To calculate a reasonable attorney's fee, the first step is to determine the number of hours reasonably expended pursuing the claim. See Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994). Notably, "[u]nder the 'hour-setting' portion of the lodestar computation, it is important to distinguish between 'hours actually worked' versus 'hours reasonably expended'." Carreras, 633 So. 2d at 1110. . . . "Hours actually worked" is not the issue. The objective instead is for the trier of fact to determine the number of hours reasonably expended in providing the service. 'Reasonably expended' means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should reasonably have been expended in that particular case. The court is not required to accept the hours stated by counsel. In re Estate of Platt, 586 So. 2d 333-34 (emphasis in original). The trier of fact must determine a reasonable time allowance for the work performed-which allowance may be less than the number of hours actually worked. Such a reduction does not reflect a judgment that the hours were not worked, but instead reflects a determination that a fair hourly allowance is lower than the time put in. Id. Moreover, only time incurred pursuing the claim is compensable, not time incurred exploring civil remedies or opportunities to opt out of the Plan through lack of notice or otherwise. Carreras, 633 So. 2d at 1109. See also Braniff v. Galen of Florida, Inc., 669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The presence or absence of notice will neither advance nor defeat the claim of an eligible NICA claimant who has decided to invoke the NICA remedy . . .; thus, there is no reason to inquire whether proper notice was given to an individual who has decided to proceed under NICA. Notice is only relevant to the defendants' assertion of NICA exclusivity where the individual attempts to invoke a civil remedy."). Accord, O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We recognize that lack of notice does not affect a claimant's ability to obtain compensation from the Plan."). Finally, a fee award must be supported with expert testimony, and cannot be based entirely on the testimony of the claimant's attorney. Palmetto Federal Savings and Loan Association v. Day, 512 So. 2d 332 (Fla. 3d DCA 1987); Fitzgerald v. State of Florida, 756 So. 2d 110 (Fla. 2d DCA 1999). See Nants v. Griffin, 783 So. 2d 363, 366 (Fla. 5th DCA 2001)("To support a fee award, there must be evidence detailing the services performed and expert testimony as to the reasonableness of the fee Expert testimony is required to determine both the reasonableness of the hours and reasonable hour rate."). To support the claim for attorney's fees, Petitioners offered an "Attorney Services" statement, which reflects a claim for 81 hours Petitioners' counsel, Gary Cohen, claims he dedicated to the claim. (Petitioners' Exhibit 1). Notably, the statement is not a business record, since Mr. Cohen did not, and does not in the ordinary course of his practice, maintain time records. Rather, the statement represents an effort to construct a time record to support Petitioners' claim for fees, and provides a summary of activities performed, with an estimate of time expended for each activity documented. The major activities were noted as "Meeting with Clients (2005)," 4.0 hours; "Preparation of Petition for Benefits," .5 hours; "Research before Petition re: NICA" (five areas listed), 10.5 hours; "Medical Records Review" (21 providers listed), 17.5 hours; "Depositions: Preparation and Attendance at" (6 depositions), 16.5 hours; "Hearings: Preparation and Attendance at" (9 entries), 8.75 hours; "Motions and Pleadings" (23 entries), 9.25 hours; "Correspondence: 2/06-9/06 77 letters and attachments," 10 hours; and "Expert Conferences" (with Dr. Mary Minkin, Dr. James Balducci, Frederick Raffa, Ph.D., and Paul Deutch, Ph.D., at 1 hour each), 4 hours. Where, as here, "attorneys have not kept contemporaneous time records, it is permissible for a reconstruction of time to be prepared." Brake v. Murphy, 736 So. 2d 745, 747 (Fla. 3d DCA 1999). However, the attorney must present evidence of his services in "sufficient . . . detail to allow a determination of whether each activity was reasonably necessary and whether the time allocation for each was reasonable." Id. (Emphasis omitted). See Florida Patient's Compensation Fund v. Rowe, 472 So. 2d at 1150 ("Inadequate documentation may result in a reduction of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary."); Lubkey v. Compuvac Systems, Inc., 857 So. 2d 966, 968 (Fla. 2d DCA 2003)("[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible."). Here, counsel claims 4 hours for a "Meeting with Clients (2005)," that likely predated the trial court's order of abatement and likely involved a discussion of matters not directly related to the NICA claim (Tr., p. 37). Nevertheless, an initial conference with a client, and the information obtained regarding her circumstances, is a natural starting point for any claim, be it a NICA claim or one sounding in medical malpractice. Consequently, the time claimed (4 hours) being reasonable, counsel should be compensated for his time. Also reasonable, is counsel's claim of .5 hours for "Preparation of Petition for Benefits." However, counsel's claim for "Research before Petition re: NICA," 10.5 hours, is, but for the claim of "NICA statute 766.302," 1 hour, rejected as the activities noted were not shown to be reasonably necessary to filing or pursuing the claim, and the time allocation for each activity was not shown to be reasonable. In so concluding, it is noted that the research activities mentioned ("Benefit Handbook," 2 hours; "NICA Notice and handout," .5 hours; "Case law re: NICA," 2.5 hours; and "Task Force Recommendation," 4.5 hours) are vague on specifics, and not demonstrative of necessity to filing a petition. It is further noted that the requisites for filing a claim are straight forward, and an attorney of moderate experience should experience no difficulty in filing a claim. Additionally, it is noted that counsel's testimony revealed he had filed 24 to 36 claims for compensation, and presumably was familiar with the requisites to file a claim. Consequently, if such "research" was done, apart from reviewing the statutory provisions of the Plan, it likely related to the issues of notice and constitutionality, and not issues related to compensability or benefits, which are prescribed by Sections 766.301, et seq., Florida Statutes. Finally, there is nothing to support a conclusion that the time claimed for each task was reasonable. Consequently, for Petitioners' claim for "Research before Petition re: NICA," 1 hour is considered reasonable. Next, counsel claims 17.5 hours for "Medical Records Review." Included are the medical records of 19 providers, and the reports of Michael Duchowny, M.D. (Respondent's Exhibit 2), and Donald Willis, M.D. (Respondent's Exhibit 1). With regard to the time claimed for reviewing (reading) Dr. Duchowny's report (.5 hours) and Dr. Willis' report (.5 hours), that time is disallowed as unreasonable (excessive) and redundant, since counsel requested and was granted credit, discussed infra, under "Motions and Pleadings" for .5 hours associated with "Receipt and review of NICA's Notice of Compensability, which included a copy of the reports of Doctors Duchowny and Willis. Otherwise, the remaining record review, as well as the time allocation (16.5 hours), was reasonable. Next, counsel claims 16.5 hours for "Depositions: Preparation and Attendance at " the depositions of Renee Oliver, on July 17, 2006; Patty Osbourne, R.N., on July 20, 2006; Jenette Dorff, R.N., on July 20, 2006; Debra Brinkmeyer, R.N., M.D., on July 20, 2006; David Mowere, M.D., on August 3, 2006; and Kenney Shipley, on September 27, 2006. With regard to the time claimed incident to the depositions of Dr. Mowere and Ms. Shipley (6 hours), it must be resolved that such time was not shown to be reasonably necessary to the pursuit of the claim. In so concluding, it is noted that by the time Dr. Mowere was deposed (August 3, 2006), NICA had agreed the claim was compensable. Under such circumstances it is unreasonable to expect NICA to pay for time expended that addressed compensability and notice. With regard to Ms. Shipley's deposition, taken September 27, 2006, it is also observed that when she was deposed, NICA had agreed the claim was compensable, and the only issues pertinent to her deposition were notice and the constitutionality of the Plan. Indeed, those were the announced reasons Petitioners requested, and were accorded leave to take her deposition. (See Petitioners' Motion for Request of the Deposition of Kenney Shipley, Executive Director of NICA, filed May 1, 2006; Order, July 13, 2006.) Such being the case, it is not reasonable to expect NICA to pay for time associated with Ms. Shipley's deposition. With regard to time associated with the depositions of Ms. Oliver, taken by Intervenors on July 17, 2006, and Nurses Osbourne, Dorff, and Brinkmeyer, taken July 20, 2006, the circumstances are different since NICA had not yet agreed the claim was compensable. Consequently, since Nurse Osborne's deposition addressed compensability, the 1.5 hours incurred attending her deposition was reasonably related to the claim. With regard to the depositions of Ms. Oliver, and Nurses Dorff and Brinkmeyer, those depositions addressed both compensability and notice. However, the time associated with notice was de minimus. Consequently, the 5 hours incurred in attending their depositions (Ms. Oliver, 3.5 hours, Nurse Dorff, .5 hours, and Nurse Brinkmeyer, 1 hour) were reasonably related to the claim. Also reasonably related to the claim were the 4 hours incurred preparing for Ms. Olivers' and the nurses' depositions. In all, 10.5 hours were reasonably dedicated to preparation and attendance at depositions. Next, counsel claims 8.75 hours for "Hearings: Preparation and Attendance at," 7 hearings (items a-f and h), preparation for final hearing (item g), and review of judge's final order (item i). With regard to the time claimed for a hearing on February 23, 2006 (.25 hours) and September 15, 2006 (.25 hours), no hearing was held, and that time is disallowed. However, with regard to the hearing of March 22, 2006 (item b), Petitioner overlooked noting time dedicated to that hearing, and is entitled to a .5 hour credit.3 With regard to the time claimed for attendance at the final hearing of October 10, 2006 (2.0 hours), given that issues related to compensability were resolved prior to hearing, and most of the time at hearing involved issues related to notice and compensability, only .5 hours are approved as reasonably related to the claim. Moreover, given the issues left to address at hearing, of the time claimed for preparation for hearing (4.0 hours), only 1 hour will be approved as reasonable. Petitioners' claim of .5 hours to review the final order is reasonable. In all, under the activity "Hearings: Preparation and Attendance at," 4.25 hours are found to be reasonably incurred in pursuing the claim. Next, counsel claims 9.25 hours for various activities associated with "Motions and Pleadings," such as preparation, receipt, review, and research, and has documented a claim for 23 entries (items a-w). With regard to Petitioners' claim of 1.0 hour for "Receipt, review, research into Defendant Mowere & Hosp Motion to Intervene; Petitioners' Objection to Motion to Intervene" (item a), that claim is disallowed as such activities that related to Petitioners' objection (apart from receipt and review of the motions, which time was de minimus), were frivolous.4 As for Petitioners' claim of .5 hours related to preparation of motion to depose Ms. Shipley (item i), and .25 hours related to review of Respondent's response (item k), that .75 hours is disallowed, as it relates to Petitioners' notice and constitutional claims. As for items f (.25 hours), j (.25 hours), n (.25 hours), o (.25 hours), p (.25 hours), s (.25 hours), and u (.25 hours), 1.75 hours, those activities only warrant a claim for .1 hours each (.7 hours). The other activities (5.75 hours) are reasonable. In all, 6.45 hours were reasonably expended on motions and pleadings. Next, counsel claims 10.0 hours for preparing or reviewing, from "2/06-9/06 [,] 77 letters and attachments by and between counsel for Petitioner, counsel for NICA and Judge Kendrick." Notably, there was no explanation of what those letters related to, what issues they addressed, or any method offered to assess whether the time allocation was reasonable. Accordingly, the proof failed to support a conclusion that the activity or hours claimed was reasonable, and the 10 hours claimed is disallowed. Finally, counsel claims 4 hours for "Expert Conferences" with Dr. Minkin (1 hour), Dr. Balducci (1 hour), Dr. Raffa (1 hour), and Dr. Deutch (1 hour). However, there was no explanation of when the conference occurred, what was discussed, or any proof to support a conclusion that the time allocation was reasonable and related to the pursuit of the claim. Accordingly, the proof failed to support the conclusion that the activity or hours were reasonable.5 Here, the total time and labor reasonably expended to pursue the claim was 43.20 hours. The next consideration in establishing a reasonable fee is the determination of the fee customarily charged in the locality for similar legal services, when the fee basis is hourly billing for time worked. Carreras, 633 So. 2d at 1108. Here, given the nature of the expertise and legal skills required, for what may be described as a moderately complex case, the proof supports the conclusion that the "market rate" (a rate actually being charged to paying clients) is $300.00 an hour. A reasonable fee under the methodology established by Florida Patient's Compensation Fund v. Rowe, supra, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, supra, is determined by multiplying the hours reasonably expended by the reasonable hourly rate. The results produce the "lodestar figure" which, if appropriate, may be adjusted because of the remaining factors contained in Section 766.31(1)(c), Florida Statutes. Applying such methodology to the facts of this case produces a "lodestar figure" of $12,960.00 (43.20 hours x $300 per hour). Upon consideration of the facts of this case, and the remaining criteria established at Section 766.31(1)(c)3-6, Florida Statutes, there is no apparent basis or reason to adjust the "lodestar figure." In this regard, it is observed that there were no significant time limitations shown to have been imposed by the claimants or the circumstances in this particular case, and the nature and length of the professional relationship with the claimants was likewise a neutral consideration. The experience, reputation and ability of the lawyer who performed the services has been considered in establishing the reasonable hours and reasonable hourly rate and does not, in this case, afford any additional basis to adjust the "lodestar figure." Finally, although counsel was employed on a contingency fee basis and stood to recover no fee if he proved unsuccessful in pursuing the claim or, alternatively, in pursuing a malpractice action, the contingency nature of the fee arrangement does not warrant an adjustment of the "lodestar figure." Given the nature of the claim, which was relatively straight-forward, lacked any novel aspects, and the earliest medical records disclosed the infant had likely suffered a significant brain injury during birth, the risk of nonrecovery was not sufficient to warrant any adjustments. The claim for other expenses Finally, Petitioners' counsel incurred certain expenses in his representation of Petitioners for which he seeks recovery. (Petitioners' Exhibit 2). Such costs total $33,075.24. However, at hearing, Petitioners withdrew the claim for "Services," set forth at the top of page 1, Petitioners' Exhibit 2, in the sum of $3,537.50, leaving a claim for $29,537.74. (Tr., pp. 73 and 73). Of those costs, NICA did not object to the following expenses: 08/09/05 OB/GYN Clinic Records $ 19.31 09/07/05 West Volusia Pediatrics $ 150.00 09/08/05 Pediatric Surgery $ 4.00 09/13/05 Community Medical Assoc. $ 7.82 09/16/05 Florida Hospital $ 1,360.55 09/21/05 Seminole County $ 3.50 09/28/05 Childrens Resp. Care $ 9.00 09/28/05 Donald Willis, M.D. $ 1,000.00 10/11/05 Pediatric Neurology $ 7.00 01/20/06 DOAH Filing Fee $ 15.00 08/09/06 Depo. Renee Oliver $ 496.30 11/01/06 Hearing Transcript $ 604.72 12/04/06 Halifax Med. Center $ 68.10 $ 3,745.30 Accordingly, such expenses, totaling $3,745.30, are awarded without further discussion. Pertinent to an award of expenses, the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, effective January 1, 2006, provide: Purpose and Application. These guidelines are advisory only. The taxation of costs in any particular proceeding is within the broad discretion of the trial court. The trial court should exercise that discretion in a manner that is consistent with the policy of reducing the overall costs of litigation and of keeping such costs as low as justice will permit. . . . Burden of Proof. Under these guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. Litigation Costs That Should Be Taxed. Depositions The original and one copy of the deposition and court reporter's per diem for all depositions. The original and/or one copy of the electronic deposition and the cost of the services of a technician for electronic depositions used at trial. Telephone toll and electronic conferencing charges for the conduct of telephone and electronic depositions. Documents and Exhibits The costs of copies of documents filed (in lieu of "actually cited") with the court, which are reasonably necessary to assist the court in reaching a conclusion. The costs of copies obtained in discovery, even if the copies were not used at trial. Expert Witnesses A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report. Witnesses Costs of subpoena, witness fee, and service of witnesses for deposition and/or trial. Court Reporting Costs Other than for Depositions Reasonable court reporter's per diem for the reporting of evidentiary hearings, trial and post-trial hearings. * * * III. Litigation Costs That Should Not Be Taxed as Costs. The Cost of Long Distance Telephone Calls with Witnesses, both Expert and Non- Expert (including conferences concerning scheduling of depositions or requesting witnesses to attend trial) Any Expenses Relating to Consulting But Non-Testifying Experts Cost Incurred in Connection with Any Matter Which Was Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence Travel Time Travel time of attorney(s). Travel time of expert(s) Travel Expenses of Attorney(s) Also pertinent to an award of expenses are the following decisions: Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000)(recognizing that in the absence of exceptional circumstances, travel expenses for attorney to attend depositions should not be taxed as costs); Department of Transportation v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998)(recognizing that postage, long distance calls, fax transmissions, delivery service, and computer research are overhead and not properly taxable as costs); Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA 1996)("The prevailing party's burden, at an evidentiary cost hearing, to recover an expert witness fee is 'to present testimony concerning the necessity and reasonableness of the fee.'"); Powell v. Barnes, 629 So. 2d 185 (Fla. 5th DCA 1993)(recognizing that evidence to support an award for expert witness fees must come from witnesses qualified in the areas concerned); Gray v. Bradbury, 668 So. 2d at 298. (Testimony of "a trial attorney and an insurance casualty claim manager, who were not shown to have proficiency in the various fields of expertise at issue (ranging from accident reconstruction to neurosurgery)," was not competent to support an award for expert witness fees.); Carreras, 633 So. 2d at 1109 ("[T]he exploration of the possibility of opting out of NICA through the 'bad faith' exception or otherwise is not, as the statute requires, work performed 'in connection with the filing of a claim '"). Considering the foregoing standards, Petitioners have established their entitlement to the recovery of $828.00 as the court reporter's fee for the depositions of Nurses Osbourne, Brinkmeyer, and Dorff. However, since the electronic depositions were not used at hearing, those expenses are not recoverable. Expenses associated with the depositions of Dr. Ravello, which addressed notice; Dr. Mowere, the only relevant portion of which, at the time it was taken, dealt with notice; and Ms. Shipley, which addressed notice and the constitutionality of the Plan, are not recoverable. Also not recoverable are the fees Petitioners paid their various experts, since they were neither deposed nor testified at hearing, and there was no showing that their consideration of the claim was necessary or that their fee was reasonable. Finally, the remaining items were either not explicated or are considered overhead, and not taxable.
The Issue The issue is whether Petitioner timely filed his request for claim form requesting reimbursement for certain covered expenses under the Florida Flexible Benefits Program--Reimbursement Plan.
Findings Of Fact Petitioner is a member of the faculty of the University of South Florida. He participates in the Florida Flexible Benefits Program--Reimbursement Program (Program). The Plan allows participants to pay certain eligible medical or dependent day care expenses with pretax earnings. Each year, during an open enrollment period, an employee may elect to participate in the Program and select an amount of salary to be deducted from his or her pay. The amount of salary so deducted is not subject to federal income tax, but is available to reimburse the employee for covered expenses. In order for the Program to continue to enjoy preferential treatment under the federal income tax law, Respondent, which administers the Program, must adhere to certain rules. Most relevant to this case is that that the deducted salary must be at risk. Specifically, an employee is not entitled to a refund of all or part of the deduction if he or she does not timely submit sufficient reimbursable expenses to exhaust his or her account. The Program brochure clearly warns participants of this "use it or lose it" rule. The plan year for the Program is the calendar year. In 1997, Petitioner was a participant in the Program. He and his wife chose not to submit claims for covered expenses, as they paid them during the year. Instead, they accumulated the receipts with the intent of submitting a single claim for their account balance at the end of the plan year. The Program sets a claims filing deadline of April 15 for filing claims arising out of the expenses paid in the preceding calendar year. The Program brochure warns that this deadline means all claims for expenses incurred during a plan year must be postmarked by midnight, April 15 of the following year to be considered for processing. Any claims received after this date will be returned to the participant unprocessed, regardless of the account balances. Participants should file claims as soon as the required documentation is obtained. This case involves only one issue: whether Petitioner timely submitted his claims for reimbursement under the Program. There is no issue concerning Petitioner's payment of these expenses or his account balance. There is no issue whether these expenses are eligible for reimbursement. In early March 1998, Petitioner and his wife collected their receipts for covered expenses from 1997. Petitioner completed a reimbursement form and addressed the envelope to Respondent at the correct address. Wanting to make copies of the materials, Petitioner did not immediately mail the package to Respondent. A few days later, prior to copying the materials or mailing the package, Petitioner's father became ill in the Mideast, where he lives. Petitioner and his wife agreed that she would copy the materials and mail the package to Respondent. On March 21, which marks the birthday of Petitioner's wife and a cultural holiday for Petitioner and his wife, Petitioner's wife telephoned her husband, who was still visiting his sick father. In the ensuing discussion, Petitioner learned that she had not yet mailed the package. They discussed the matter and again agreed that she would copy the materials and mail the package without further delay. Without further delay, Petitioner's wife copied the materials and mailed the package to Respondent at the correct address. She placed the package with sufficient postage in a mailbox across from her home. The package consisted of a claims reimbursement form and receipts for eligible expenses. It appears that she may have written an old return address on the envelope. Respondent never received the package. Respondent's procedures are carefully designed and executed to ensure that it will not lose a claim form. Repeated searches for the missing form never uncovered it. The package was lost after its mailing by Petitioner's wife and prior to its delivery to Respondent. Possibly, the incorrect address precluded notification to Petitioner of problems with delivery. Possibly, the package was just lost. Unfortunately, Petitioner learned only after the April 15 deadline that Respondent had never received the package.
Recommendation It is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order determining that Petitioner timely submitted the claim and eligible expenses that were the subject of this case. DONE AND ENTERED this 8th day of March, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of March, 2000. COPIES FURNISHED: Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mohsen M. Milani 15927 Ellsworth Drive Tampa, Florida 33647 Julia Forrester Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399
The Issue Whether the Petitioner is entitled to receive Health Insurance Subsidy payments retroactive to July 1995, the month she began to receive retirement benefits from the Respondent as the surviving spouse of a member of the Florida Retirement System.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is, and was at the times material to this case, the state agency charged with the responsibility of administering the Florida retirement and pension systems. Section 121.025, Florida Statutes (1995). The Division is, and was at the times material to this case, also responsible for administering the Retiree Health Insurance Subsidy. Section 112.363(7), Florida Statutes (1995). Harold Mosser, the former husband of Mrs. Kirkley, retired from his job as a school principal in August 1979, and he was a member of the Florida Retirement System. Mr. Mosser received a monthly state retirement benefit, and, as a supplement to the retirement benefit, he received a monthly Health Insurance Subsidy. Mrs. Kirkley retired from her job as a schoolteacher in 1989, and she is a member of the Florida Retirement System. Since her retirement, Mrs. Kirkley has received a monthly state retirement benefit and a monthly Health Insurance Subsidy. Mr. Mosser died on April 28, 1995. Mrs. Kirkley did not advise the Division of Mr. Mosser's death. Rather, the Division learned of his death in July 1995, when conducting a routine check of the Bureau of Vital Statistics "death tape." As Mr. Mosser's surviving spouse and the person he named as his joint annuitant, Mrs. Kirkley was entitled to receive an "Option 3" monthly retirement benefit for the remainder of her lifetime, pursuant to Section 121.09, Florida Statutes (1995). Mrs. Kirkley was also eligible to receive a monthly Health Insurance Subsidy upon filing an application for the subsidy with the Division, and this benefit included payment of the subsidy from the date of Mr. Mosser's death or for the six months prior to the date the application was filed.1 In a Statement of Retirement Benefit Payments dated 1/31/95, the components of Mr. Mossers's monthly retirement benefit payments were identified. At the time of his death, Mr. Mosser received a gross monthly retirement benefit of $1,730.60, plus a Health Insurance Subsidy of $90.00, minus $250.00 withholding tax, for total net monthly benefits of $1,570.60. Because the Division did not learn of Mr. Mosser's death until July 1995, his monthly benefit check was issued in May and June 1995 and electronically deposited in NationsBank. When the Division learned of Mr. Mosser's death, a Division representative tried to reach Mrs. Kirkley by telephone but could not obtain her unlisted telephone number. The representative then sent Mrs. Kirkley a letter dated July 20, 1995, in which the representative advised Mrs. Kirkley that Mr. Mosser's estate was entitled to receive his benefits for the month of April 1995 in the net amount of $1,570.60 and that she must apply for a continuing monthly benefit as Mr. Mosser's designated beneficiary. The representative also advised Mrs. Kirkley to complete the Division Form FST-11b that was enclosed with the letter and to return it to the Division together with Mr. Mosser's death certificate. Mrs. Kirkley completed the form enclosed with the letter and mailed it to the Division as directed. The Division changed Mr. Mosser's account over to Mrs. Kirkley, and she began receiving a monthly retirement benefit check in October 1995.2 Mr. Mosser's Health Insurance Subsidy was terminated effective July 1995, and the net monthly benefit received by Mrs. Kirkley as Mr. Mosser's beneficiary did not include a Health Insurance Subsidy payment. It is the Division's practice to send each retiree added to the system a "retiree packet" that includes, among other things, an application for the Health Insurance Subsidy and an explanation of the subsidy, as well as a booklet containing an explanation of all of the benefits available to retirees and beneficiaries under the Florida Retirement System. The process of sending out the retiree packets is automated, so that a packet is sent to every retiree and beneficiary when they are first entered into the system. Pursuant to the Division's regular practice, Mrs. Kirkley would have been sent the retiree packet in October 1995, when she was added to the system as Mr. Mosser's beneficiary. The Division also sends retirees and beneficiaries an annual newsletter, and the Health Insurance Subsidy was discussed in the 1995 and 1996 newsletters. Mrs. Kirkley received a Statement of Retirement Benefit Payments, as Mr. Mosser's beneficiary, each July, December, and January. This statement includes a separate entry for the Health Insurance Subsidy, with the amount of the subsidy noted; Mrs. Kirkley would have been aware of this entry because the Statement of Retirement Benefit Payments that she had been receiving on her own account would have shown an amount paid as her Health Insurance Subsidy. Mrs. Kirkley received her first statement in December 1995, and it would have been apparent from the statement that no amount was included for the Health Insurance Subsidy. Mrs. Kirkley does not recall having any direct contact with the Division between the time she submitted her application for the retirement benefit as Mr. Mosser's beneficiary and late September 1997, when she called the Division to request that the monthly check be electronically deposited in her bank account. During the conversation in September 1997, the Division's representative advised Mrs. Kirkley that she was entitled to receive a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse, in addition to the monthly retirement benefit she received as Mr. Mosser's beneficiary. The representative told Mrs. Kirkley that she would send her an application for the Health Insurance Subsidy, which the representative did in September 1997. Mrs. Kirkley completed the application she received from the Division and sent it to the Division with a cover letter dated October 17, 1997. The application required certification of health insurance coverage, which Mrs. Kirkley satisfied by attaching a copy of her Medicare Health Insurance card. Mrs. Kirkley did not hear anything from the Division for quite a long time. She contacted the Division and was told that they had not received her application for the Health Insurance Subsidy. The Division sent her another application form, which she completed and sent to the Division in January 1998, and she began receiving a monthly Health Insurance Subsidy as Mr. Mosser's surviving spouse; she also received retroactive benefits effective July 1997 through December 1997, a period of six months prior to January 1998. The Division eventually located Mrs. Kirkley's October 1997 application, and it advised her in a letter dated April 6, 1998, that she would receive retroactive Health Insurance Subsidy payments for an additional three months, moving the effective date of her entitlement to the benefits back to April 1997. Including the retroactive benefits she received, Mrs. Kirkley has been receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse since April 1997. She also had the benefit of Mr. Mosser's May and June 1995 Health Insurance Subsidy, which were paid by the Division because it was not aware that Mr. Mosser was deceased. Mrs. Kirkley seeks to recover an additional $1890.00 in retroactive Health Insurance Subsidy payments as Mr. Mosser's surviving spouse, which is the difference between the total Health Insurance Subsidy payments she has received and the total Health Insurance Subsidy payments she would have received had the benefits been paid to her retroactive to Mr. Mosser's death (21 months x $90.00 per month = $1890.00). Summary The evidence presented by Mrs. Kirkley is insufficient to establish her entitlement to retroactive Health Insurance Subsidy payments from July 1995 to March 1997. It is uncontroverted that she submitted her application for the Health Insurance Subsidy with her certification of health insurance coverage in October 1997 and that the Division paid retroactive Health Insurance Subsidy payments for the six months prior to the date it received the application. In addition, Mrs. Kirkley has not presented sufficient evidence to establish that the Division should be required to pay her the additional retroactive Health Insurance Subsidy payments because it failed to send her an application until September 1997. The Division did not make any specific representations to her regarding her entitlement to the Health Insurance Subsidy payments until September 1997, and she failed to establish by the greater weight of the credible evidence that she did not receive any general information from the Division that included information regarding the Health Insurance Subsidy. In addition, Mrs. Kirkley knew or should have known in December 1995 that she was not receiving a Health Insurance Subsidy as Mr. Mosser's surviving spouse, when she received her first statement detailing the components of her gross monthly benefit as Mr. Mosser's beneficiary, and she could have made inquiry of the Division at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order dismissing the Petition for Review of Final Agency Action filed by Mary J. Mosser, now known as Mary J. Kirkley. DONE AND ENTERED this 20th day of November, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 20th day of November, 2001.
