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.
The Issue Whether DHRS may compel Ronald H. Pollard to pay the maintenance fee. Whether DHRS properly determined the amount of maintenance fee.
Findings Of Fact Herman Pollard is hospitalized at Florida State Hospital, Chattahoochee, Florida, and has been since July 26, 1989. Herman is competent, but has suffered from a mental illness diagnosed as schizophrenia for many years and has been institutionalized periodically for the treatment of this disease over the years. He has spent more years with his family than he has spent being institutionalized. Herman Pollard receives monthly Social Security Disability Income (SSDI) benefits from the Social Security Administration (SSA). His father had been appointed Representative Payee by SSA to receive Herman's SSDI benefits. For several years prior to 1988, Herman Pollard lived in North Carolina. After his father died, Herman relocated to Tallahassee, Florida, and lived with his brother, Ronald Pollard, and his brother's wife. The brother's 62-year-old mother resides in another Florida city. She is unable to care for Herman, and Ronald is the only living relative able to care for Herman. Ronald was appointed Representative Payee for his brother. A Representative Payee receives and disburses Social Security benefits on behalf of a social beneficiary. A Representative Payee has a fiduciary duty under federal law to disburse the money received to pay for the actual recipient's needs and care. However, the federal law prohibits any legal action by a creditor to enforce payment of a debt by a creditor or any assignment of future benefits. A Representative Payee may be criminally prosecuted by the Federal Government for violation of his fiduciary duty. Although Ronald acceded to his father's request to take care of Herman, Ronald has not adopted Herman or been made his legal custodian or guardian. Ronald Pollard is not legally responsible for his brother's support. A Responsible Party is legally responsible for a patient's financial support. Upon moving to Tallahassee, Herman lived in an apartment with Ronald and his wife. He spent the day in an adult day care program. However, his behavior became increasingly disturbing to the other adults requiring care; and Herman had to cease his participation. Ronald's apartment provided cramped living quarters for the three of them. Ronald and his wife purchased a three-bedroom home to provide Herman with his own bedroom. Herman is unable to drive, and Ronald and his wife provide transportation for Herman for treatment and doctors' visits. Ronald informally apportions one-third of the expenses, e.g., mortgage and car payments, food, clothing, and utilities, to Herman. The $346.00 in SSDI, which Ronald received in benefits for Herman, is less than one-half of the monthly expenses of $700.00 incurred in Herman's behalf. Because of Herman's mental illness, he was determined to be in need of more specialized temporary care than was available at home and was placed in a local treatment facility. Subsequently, it was determined that a more restrictive setting was required; and Herman was involuntarily placed in the Florida State Hospital. On July 24, 1990, a Final Order was issued authorizing continued involuntary placement for Herman. In re: Herman Pollard, Case No. 90-4023(B). On October 1, 1989, DHRS provided Ronald Pollard with a Notice of Maintenance Fee, having identified Ronald as the Responsible Party. The Notice advised Ronald of monthly billings of $296.00 for Herman's stay at the Hospital. On November 27, 1989, Ronald responded with a request that the "billings be adjusted to no liability" against him. (Hearing Officer's emphasis. On March 12, 1990, DHRS' Fee Waiver Committee recommended denial of Ronald's request for a fee waiver, stating that: Discussions with appropriate staff indicate client's treatment is expected to be long term. Also, the brother's current apartment (sic) was purchased after the client was admitted. Ronald advised Ronald E. Rohan, Florida State Hospital's Accounting Supervisor and Acting Chairman of the Fee Waiver Committee, that he and his wife purchased their house before Herman was hospitalized. DHRS stipulates they did. On March 21, 1990, DHRS' District Administrator denied Ronald's request for a fee waiver. On March 29, 1990, Ronald was advised that this request had been disapproved because, "Discussions with appropriate staff indicate client's treatment is expected to be long term." On April 4, 1990, Ronald requested an administrative hearing. DHRS arrives annually at a daily charge for medical and personal services for its patients. This charge is currently $200.00 per day. The State is charged by law to assess and collect for the services which the Hospital provides. DHRS determined Herman's maintenance fee generally based upon disposable income. DHRS computes disposable income based upon Rule 10-6.020, Florida Administrative Code. Domestic expenses such as rent, automobile payments or transportation costs for Herman were not considered by DHRS because it did not consider Herman as having domestic expenses. DHRS included Herman's SSDI benefits as income and after allowing $50.00 for his personal use, set his maintenance fee at $296.00. Rule 10-6.010(19), Florida Administrative Code, excludes SSDI benefits from income. DHRS uses a combination of persuasion, threat of court action, and court action to recover payment of maintenance fees from a Responsible Party. DHRS may obtain a lien against the Responsible Party's real property in favor of DHRS pursuant to Section 402.17, Florida Statutes, and Rule 10-6.023(6), Florida Administrative Code. In this case, DHRS is treating the Representative Payee, Ronald Pollard, as a Responsible Party. On June 25, 1990, Kingsley R. Ross, an Assistant Secretary of DHRS, acknowledged that charging, assessing or collecting fees by DHRS from social security benefits may be in conflict with federal statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that DHRS assess the maintenance fee in accordance with its formula at zero; amend its records to reflect that Ronald Pollard is not liable for the treatment or debts of Herman Pollard; and cease its efforts in this matter since collection is barred by federal law DONE and ENTERED this 18 day of October, 1990, in Tallahassee, Florida. STEPHEN F. DEAN 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 18 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2999 Petitioner's Proposed Findings of Fact Unnumbered paragraph numbers 1-10 are substantially adopted but reorganized and rewritten. Respondent's Proposed Findings of Fact 1-7. Adopted. Rejected, as contrary to the facts. Herman lived with Ronald, Herman had domestic expenses. Rejected. As discussed in the Conclusions of Law, Ronald is not the Responsible Party. Rejected. There has been a legal claim asserted. To the extent that these proceedings are legal actions, Petitioner and Respondent are engaged in litigating this dispute. COPIES FURNISHED: George Drumming, Jr., Esquire 317 E. Park Avenue Tallahassee, FL 32301 Gene Stephens Assistant Hospital Attorney Florida State Hospital Chattahoochee, FL 32324 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 should be denied on the ground that said claim was not timely filed with Department of Management Services, Division of State Employees' Insurance (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and has been at all times material to the instant case, a participant in the State of Florida Flexible Benefits Plan (hereinafter referred to as the "Plan") with an established Medical Reimbursement Account. The following were among the medical expenses incurred by Petitioner and members of her immediate family during the 1992 calendar year: DATE TYPE OF SERVICE AMOUNT 6/29/92 Dental $70.00 7/9/92 Dental $310.00 7/11/92 Endodontic $450.00 7/17/92 Optical $266.75 7/22/92 Dental $500.00 7/27/92 Optical $84.70 8/19/92 Optical $416.50 12/29/92 Dental $210.00 In August of 1992, Hurricane Andrew ravaged parts of South Florida. Petitioner's residence was extensively damaged by the storm. Most of the contents of the residence, including medical records and receipts, were destroyed. Petitioner and her family were forced to vacate the premises. They packed their remaining belongings and moved to another location in Dade County, with the intention of returning to their home once the damage to the structure had been repaired. As of the date of the hearing in this case, all of the necessary repairs to the home had yet to be made and therefore the family had not moved back in. Petitioner and the other members of her family were among those residents of South Florida whose lives were significantly disrupted by the hurricane and the destruction and devastation it caused In the aftermath of the hurricane, Petitioner directed her energies toward obtaining a return to normalcy in her life. Although she realized that there were medical expense reimbursement claims that she needed to file with the Department, filing these claims was not a priority of hers. She focused her attention on other matters that she considered to be more deserving of her time given her situation. In January or February of 1993, Petitioner telephoned the Department to inquire if extensions of time for filing reimbursement claims were being given to Plan participants, such as herself, who were still suffering from the consequences of Hurricane Andrew. The person to whom Petitioner spoke advised her that such extensions were indeed being given. Based upon what she had been told by this Department representative, Petitioner reasonably believed that she would be able to file reimbursement claims for 1992 medical expenses after March 1, 1993, without having these claims rejected on the ground that they had been untimely filed. She therefore felt that there was no urgency with respect to the filing of these claims and she acted accordingly. Shortly after gathering all of the supporting documentation she believed she needed, 1 Petitioner, on September 29, 1993, filed a claim with the Department requesting that she be reimbursed from her Medical Reimbursement Account for the medical expenses enumerated in Finding of Fact 2 of this Recommended Order. The Department designated the claim as Claim No. 34092993. Petitioner also sought reimbursement, through the filing of this claim, of certain medical expenses incurred in 1993, including $140.00 for dental work that Petitioner had inadvertently indicated on the claim form had been performed in July of 1992. The work had actually been done in July of 1993. By letter dated October 8, 1993, the Department advised Petitioner that "[o]nly expenses for services rendered during the January 1, 1993 through December 31, 1993 plan year are eligible for reimbursement" and that "[s]ince [her] 1992 expense does not fall within this plan year, it is not reimbursable." Petitioner responded to this advisement by sending the following letter, dated November 28, 1993, to the Department: This is a petition or application requesting a formal hearing on my Claim #34092993 for Payment/Reimbursement for expenses incurred during my period of coverage for 1992. This Claim was denied. My Name is: Luretha F. Lucky My Address is: 10430 S.W. 162nd Terrace (temporary) Miami, Florida 33157 My permanent address is: 10361 S.W. 139th Street Miami, Florida 33176 I am employed at Florida International University, Miami, Florida 33199. I filed my claim late because my home was severely damaged when hit [b]y Hurricane Andrew, August 24, 1992. In addition, the content[s] in my home w[ere] destroyed, therefore, it took awhile for me to collect documentation for my claim from medical personnel. Also, I had to move and the few items saved were packed away. Lastly, I called the Department of Management Services, Division of State Employees' Insurance to inform them of what had happened to me and asked if . . . they were providing extensions on submitting claims. I was told they were. My mistake was not asking and recording the name of the person with whom I spoke. As you can see from my temporary address, I am still not back in my home! In fact we just settled (with the assistance of the Insurance Commissioner's Office) with our insurance company to complete the work on our home. We had to request an extension on filing our income tax for 1992. This past year has been an awful experience for us, and I do hope you will provide me a hearing on my reimbursement. My Claim # is: 34092993. The decision that my claim was denied was received by regular mail. Thank you very much for considering my request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department enter a final order finding Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 to have been timely filed and therefore subject to consideration on its merits. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April, 1994. STUART M. LERNER 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 15th day of April, 1994.
The Issue The issue in this proceeding is whether Petitioner was the subject of an unlawful employment practice by Respondent based on her sex.
Findings Of Fact Bay is a nursing home and rehabilitation center for those in medical need of such services. It is located in Port. St. Joe, Florida. The facility has a number of residents staying at the facility who require help with mobility, standing and walking. The payroll services for Bay are performed by Signature Payroll Services, LLC, which is affiliated with Bay through a parent company. Bay offers all employees a package of employment benefits, including disability benefits. Section 7.2 of the Stakeholder Handbook states: Short & Long Term Disability In the event Stakeholders become disabled due to sickness, pregnancy or accidental injury, the company offers disability insurance . . . Short Term Disability provides for 60% of the Stakeholder's gross weekly wages up to a maximum of twenty four (24) weeks post fourteen (14) days of accident/injury. Long Term Disability provides for 60% of the Stakeholder's monthly wages up to one hundred eight[sic] (180) days after exhausting the Short Term Disability benefit. Please see Human Resources to review detailed summary plan documents for maximums. All new employees are offered the opportunity to enroll in Bay's employment benefit package for 90 days after their employment date. Each employee must affirmatively elect the employment benefits they wish to have and must pay any premiums for those benefits. After 90 days, an employee can only make changes to his or her benefit plan during the employee's annual enrollment period. In addition to the benefit plan, Bay also offers all employees Family Medical Leave for up to 12 weeks and/or a personal leave of absence when the employee is not eligible for leave under other company policies. Leave is addressed in section 8 of the Stakeholder Handbook. Petitioner is a Certified Nurse Assistant (CNA). She was employed by Bay on August 25, 2007. As a CNA, Petitioner was responsible for the direct care of residents at Bay. Her duties included lifting and moving residents as needed. Because of her duties, Petitioner was required to be able to lift a minimum of 50 pounds. Over that amount of weight, Petitioner had extra help and devices to assist with lifting. Throughout her employment, Petitioner was considered a diligent employee that performed her duties well. When Petitioner was hired, Bay offered her the opportunity to enroll in all of the benefits in its employment benefit plan, including disability insurance. Petitioner elected to enroll in life, health, dental and vision insurance. At the time of her hire, the only disability insurance offered to any employee by Bay was insurance under a MetLife group policy for Disability Income Insurance: Long Term Benefits issued to Signature Payroll. There was no evidence of any short-term disability insurance benefit offered to any of Bay's employees other than the MetLife policy described above. Given that there was no short-term disability insurance available to Bay's employees, it was not a discriminatory act for Respondent to not offer Petitioner short-term disability insurance. The insurance was simply not part of the benefit package offered by Bay at the time Petitioner was hired and Petitioner did not elect to enroll in either short term or long-term disability insurance. Petitioner did not change her enrollment elections during the 90-day period after her employment. She was therefore not eligible to add disability insurance to her benefit plan until late 2008. In November or December 2007, Ms. Mills sometimes worked with another CNA named Courtney Preston. At the time, Ms. Preston was pregnant. When Petitioner asked for some help lifting a resident, Ms. Preston told Petitioner that she was on light-duty due to her pregnancy. The charge nurse for the unit, who is the unit supervisor for any given shift, confirmed that Ms. Preston was on light-duty. However, the charge nurse had no authority to place an employee on light-duty. Additionally, there was no evidence in Ms. Preston?s personnel file that she had officially been placed on light-duty by anyone with the authority to do so. At best, it appears that Ms. Preston was simply being treated kindly by her fellow employees and was not officially placed on light-duty by a person with authority to do so. Ms. Preston eventually lost her baby while Petitioner was employed at Bay. The evidence was not clear as to the cause of Ms. Preston's miscarriage. However, the evidence established that Ms. Preston had a risky pregnancy of which the staff at Bay was aware. Later, Ms. Preston again became pregnant and again had a risky pregnancy. She was counseled on several occasions for her excessive absenteeism. In order to help Ms. Preston with her absenteeism, she was offered on-call status with less duty hours if she wanted it. Eventually, sometime after April 30, 2008, Bay terminated Ms. Preston for excessive absences caused, in part, by her pregnancy. On the other hand, Ms. Preston was clearly accommodated during both of her pregnancies while she was employed at Bay. In January or February 2008, Petitioner became pregnant. On February 15, 2008, Petitioner visited her doctor and was given a doctor?s note to limit her lifting to no more than 20 pounds even though she was not having any difficulty performing her job duties. The evidence was unclear as to why the doctor placed Petitioner under lifting restrictions since the doctor, within one to two weeks, raised those restrictions to not over a minimum of 50 pounds after Petitioner told him about the impact the lower-weight restrictions had on her job with Bay. On February 16, 2008, Petitioner gave a copy of the doctor?s note with the 20-pound lifting restrictions to the personnel department. On February 18, 2008, she discussed the lifting restrictions with her supervisors, Cathy Epps and Shannon Guy. They thought light-duty work could be arranged. On February 20, 2008, she discussed the lifting restrictions with David Kendrick, the corporate director of human resources, who was visiting Bay that day. He also thought that some light- duty work might be arranged. However, all of these supervisors wanted other higher-level corporate officials to have input on whether light-duty work was available. Eventually, the corporate legal counsel and the corporate risk manager were consulted on the issue of whether light-duty work was available. Petitioner did not receive light-duty work. Instead, on February 21, 2008, Petitioner was called into a meeting with Cathy Epps and Shannon Guy. Ms. Guy was very upset and tearfully told Petitioner that no light-duty was available and that Petitioner was terminated. Ms. Guy was upset because Petitioner was a good employee that she did not want to lose. Ms. Epps also wanted to keep Petitioner as an employee. Ms. Guy explained that someone from the corporate office decided Petitioner was terminated because they were afraid Petitioner was too much of a risk to employ since she could not meet the minimum-lifting requirements and "as a CNA she would be expected to assist residents, and . . . if we had a resident who was falling and she would be presented with a choice of either go to help the resident or run the risk of hurting herself or, . . . not helping the resident and, . . . allowing something to happen." Ms. Guy told Ms. Mills that she could return to work once her pregnancy was over. Importantly, Petitioner had been performing her normal duties without any problems or need for assistance throughout the several days that the corporate office was making a decision about whether light-duty work was available to Petitioner. This activity alone shows Petitioner was still qualified for her job since she continued to perform her job duties. During this period, no one from the corporate office or on the facility's premises expressed any concern that Petitioner continued to perform her regular job duties. Clearly, no one was relying on the restrictions in the doctor's note. There was no evidence to suggest that Petitioner would ignore any resident's needs while she was pregnant or would try to protect herself more than any other employee at the facility did. As indicated, Petitioner was simply terminated. There was no consideration given to whether she could still perform her duties as she clearly could do. She was not offered any leave time or even allowed to request leave as mentioned in Section 8 of the Stakeholder Handbook. The abruptness of the termination when Petitioner could still perform her job duties and the failure to offer leave were discriminatory acts on the part of Bay against Petitioner based on her pregnancy. Around February 29, 2008, eight days after her termination, Petitioner called David Kendrick to ask him about receiving light-duty. He told her that light-duty was available only for employees injured on the job. This policy is neutral on its face and there was no evidence that demonstrated the restriction of light-duty work to employees who are injured on the job had a disparate impact on pregnant women. Petitioner told Mr. Kendrick that her doctor had raised her lifting restrictions to 50 pounds. However, the new restriction did not satisfy the corporate perception that she was too much of a risk and could not perform her required duties even though she met the minimum job qualifications and had been a good employee. In ignoring the fact that she was qualified to perform her duties, Mr. Kendrick's reasoning is further evidence of Respondent's earlier intent to discriminate against Petitioner based solely on her pregnancy. Mr. Kendrick also advised Petitioner that she could not obtain the disability insurance employee benefit because she had not been an employee for more than a year and had not elected to enroll in the coverage during the 90-day period from when she was hired. There was no evidence that demonstrated Bay's denial of disability insurance coverage to Petitioner was a discriminatory act since Petitioner, like all of Bay's employees, had been offered the insurance when she was hired, had not selected the insurance as a benefit within 90 days after her hire date, and could not make changes to her benefit plan until sometime in late 2008. On or about April 28, 2008, Ms. Mills filed a complaint with FCHR/EEOC alleging gender discrimination based on sex due to her pregnancy. In early May 2008, Ms. Mills suffered a miscarriage and lost her baby. Sometime around June 1, 2008, a few weeks after her miscarriage, Ms. Mills returned to Bay and met with Cathy Epps and Gayle Scarborough. She asked to be rehired since she was no longer pregnant. Both were aware of the Petitioner's pending EEOC/FCHR complaint. Ms. Scarborough told Petitioner that she could possibly be rehired if she dropped her EEOC claim. Later, Ms. Scarborough called Ms Guy and spoke with her about rehiring Petitioner. Ms. Guy asked David Kendrick, who inquired further in the corporation. Ms. Guy does not recall receiving a response to her inquiry. However, she later called Petitioner asking if she would display a negative attitude if she were rehired and asking if she had dropped her EEOC claim. Petitioner was so discouraged by the phone call that she did not pursue getting rehired further. Because she was not rehired by Bay, Petitioner was out of work for an extended period of time. She eventually was hired and has continued her employment with a variety of employers. She was and is required to travel some distance to maintain her employment at greater expense than if she were employed in Port St. Joe. Because she lives in Port St. Joe, she wants to be reinstated to her earlier position. Petitioner is entitled to reinstatement as a CNA and to back wages and benefits until she is reinstated, less any unemployment compensation, wages and benefits earned during said period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order requiring: Reinstatement of Petitioner's employment with Respondent with all seniority and benefits as if she had not been terminated; and Payment of lost wages to Petitioner from the date of termination to reinstatement less any unemployment compensation, wages and benefits she received during the same period. DONE AND ENTERED this 7th day of October, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 7th day of October, 2010. COPIES FURNISHED: Sandra Adams, Esquire Home Quality Management 2979 PGA Boulevard Palm Beach Gardens, Florida 33410 Ashley Nicole Richardson, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. 1709 Hermitage Boulevard, Suite 200 Tallahassee, Florida 32302 Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
The Issue Whether Petitioner's claim for medical expenses from August 6, 1982 through February 27, 1983 should be approved, pursuant to the State of Florida Employees Group Health Self Insurance Plan. Petitioner appeared at the hearing accompanied by legal counsel. The Hearing Officer thereupon explained his rights and procedures to be followed in the administrative hearing. Petitioner acknowledged that he understood his rights and elected to represent himself. Petitioner testified in his own behalf at the hearing and the parties stipulated to the introduction of Respondent's Exhibits 1 and 2. A late filed exhibit, Respondent's Exhibit 3, was also admitted in evidence. Respondent presented the testimony of one witness, William R. Seaton, Benefit Analyst for the Respondent's Bureau of Insurance.
Findings Of Fact Petitioner Thomas J. Appleyard, III, is a former state employee who retired with disability in 1976 as a result of cardiac disease. At the time Petitioner retired, he maintained coverage in the state Employees Group Health Self Insurance Plan under which the Blue Cross/Blue Shield of Florida, Inc. serves as the administrator of the plan for the state. Petitioner also receives disability benefits under the Medicare program for medical expenses. (Testimony of Petitioner) The State Group Health Self Insurance Plan provides in Section X, COORDINATION OF BENEFITS, that if an insured has coverage under Medicare, the benefits payable under the state plan will be coordinated with similar benefits paid under the other coverage to the extent that the combination of benefits will not exceed 100 percent of the costs of services and supplies to the insured. Paragraph D of Section X provides that the state plan will be the secondary coverage in such situations and will pay benefits only to the extent that an insured's existing insurance coverage does not entitle him to receive benefits equal to 100 percent of the allowable covered expenses. This provision applies when the claim is on any insured person covered by Medicare. (Testimony of Seaton, Respondent's Exhibit 3) Petitioner was hospitalized at the Tallahassee Memorial Regional Medical Center on three occasions in 1982-33. His Medicare coverage paid all but $261.75 of the hospital expenses. In February 1983, Petitioner also incurred medical expenses to his cardiologist, Dr. J. Galt Allee, in the amount of $248.33. Petitioner was originally denied his remaining hospital expenses by the administrator of the state plan under the erroneous belief that he was receiving regular Medicare benefits for persons over the age of 65. In addition, Dr. Allee's bill was only partially paid by Medicare, subject to the receipt of additional information from the physician. Payment under the state plan was limited to an amount sufficient to reimburse petitioner 100 percent of the amount originally allowed by Medicare. (Testimony of Seaton, petitioner, Respondent's Exhibit 1, 3) Respondent does not receive information on claims filed under the state plan until contacted by an employee. In February 1984, Petitioner requested assistance from William R. Seaton, Benefit Analyst, of Respondent's Bureau of Insurance, regarding his difficulties in receiving proper claims payments. Seaton investigated the matter with the Insurance administrator for the state, Blue Cross/Blue Shield of Florida, and discovered that the latter had not coordinated the hospital expense balance with Medicare. They thereafter did so and as of the date of hearing, there was no longer a balance due to Tallahassee Memorial Regional Medical Center. Seaton also gave written instructions to Blue Cross to review all of Petitioner's claims and make sure that they were paid properly, and to install controls on his and his wife's records. (Testimony of Petitioner, Seaton, Respondent's Exhibit 1-2) The full claim of Dr. Allee had not been paid by Medicare since it had been awaiting requested additional in formation from the physician. Such information was provided after a personal visit had been made to Dr. Allee by Seaton and Medicare then recognized additional eligible expenses. However, a balance of $36.00 is still owed to the physician due to the fact that Blue Cross/Blue Shield had not received the necessary payment information from Medicare as of the day before the hearing. (Testimony of Seaton, Respondent's Exhibit 1) Section XVII of the state's Group Health Self Insurance Plan benefit document provides that an employee who wishes to contest decisions of the state administrator considering the employee's coverage under the plan may submit a petition for a hearing for consideration by the Secretary of Administration. (Respondent's Exhibit 3)
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
The Issue The issue is whether Petitioner is eligible for services under the Home Care for Disabled Adults Program.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a 41-year-old retired State of Florida employee. She retired on disability in August 2002 as a result of "extreme" and "terminal" medical problems, the precise nature of which is not reflected in the record. At the time of her retirement, Petitioner was working for the Department. She had worked for the Department and its predecessor, the Department of Health and Rehabilitative Services, for slightly more than ten years and she was a member of the Florida Retirement System (FRS). The Department is the state agency responsible for administering the Home Care for Disabled Adults Program ("HC/DA Program"). HC/DA Program The HC/DA Program is a state-funded program related to the federal supplemental security income (SSI) program. As such, the HC/DA Program is referred to as an "SSI-related program." The HC/DA Program is intended to provide an alternative to institutional or nursing home care for disabled adults. It does so by providing monthly support and maintenance payments for the care of eligible disabled adults in family-type living arrangements in private homes. The income threshold for the HC/DA Program is 300 percent of the SSI federal benefit rate, which is currently $552.00 per month. Accordingly, the income threshold for the HC/DA Program is $1,656.00 per month. An individual who has income in excess of $1,656.00 per month is ineligible for services under the HC/DA Program, no matter how significant his or her needs are. It is undisputed that Petitioner meets all of the other eligibility requirements for the HC/DA Program except the income threshold. Petitioner's Income and the Health Insurance Subsidy Petitioner does not receive SSI benefits. Her only sources of income are a disability benefit she receives from the federal Social Security Administration (SSA) and a pension benefit she receives from the FRS. Petitioner's SSA disability benefit is $983.00 per month. Petitioner's gross FRS pension benefit is $701.00 per month. Her net benefit is only $410.00 per month as a result of health insurance premiums which are paid to Blue Cross and Blue Shield of Florida (BC/BS) by Petitioner through "payroll deductions." Included in Petitioner's gross FRS pension benefit is a health insurance subsidy of $50.40 per month. The subsidy amount is based upon the number of years of creditable service that Petitioner had with the State. It is calculated at a rate of $5.00 for each year of service. The subsidy may only be used by Petitioner to purchase health insurance. The subsidy does not cover the entire cost of Petitioner's health insurance. Even with the subsidy, Petitioner pays approximately $240.00 per month to BC/BS for health insurance. The subsidy is "optional" in the sense that Petitioner was required to separately apply for it under the FRS. However, upon application, the subsidy is legally owed to Petitioner as a result of her ten years of service to the State. The subsidy is paid directly to Petitioner, although Petitioner never actually receives the money since she has chosen to have it (and the remainder of her insurance premium) transferred to BC/BS through a “payroll deduction” from her monthly FRS check. Petitioner's total income is $1,684.00 per month if the health insurance subsidy is included, and it is $1,633.60 per month if the subsidy is excluded. Department's Review of Petitioner's HC/DA Application and Determination of Ineligibility On March 5, 2003, Petitioner met with Tracy Seymour, an adult services counselor with the Department, to determine whether she might be eligible for services under the HC/DA Program. Ms. Seymour helped Petitioner complete the application for the HC/DA Program, and gathered general income information from Petitioner. Petitioner's application was then forwarded to the Department's economic self-sufficiency unit for review. That unit is responsible for determining income eligibility where, as here, the applicant is not receiving SSI benefits. To determine income eligibility, the economic self- sufficiency caseworker verifies the income and resource information provided by the applicant on the application. Pamela Bolen was the caseworker responsible for reviewing Petitioner's application. Ms. Bolen contacted the SSA and obtained a print-out detailing Petitioner's disability benefit. That print-out confirmed that Petitioner received an SSA benefit in the amount of $983.00 per month. Ms. Bolen next called the Division of Retirement (DOR) to obtain information related to Petitioner's FRS pension benefit. Ms. Bolen was told that Petitioner's benefit was $650.60 per month with an additional $50.40 per month being paid towards Petitioner’s health insurance by the State. Later, Ms. Bolen received a print-out from DOR which reflected Petitioner's gross FRS pension benefit as being $701.00. That figure is the sum of $650.60 and $50.40. Because Ms. Bolen had not previously done an income eligibility determination for the HC/DA Program, she was unsure as to whether the $50.40 insurance subsidy was to be included or excluded when determining Petitioner's income. As a result, she contacted the economic self-sufficiency "help desk" for guidance. Roger Menotti, an administrator with 18 years of experience in the economic self-sufficiency unit, responded to Ms Bolen's inquiry. Mr. Menotti researched those portions of the Department's policy manual that relate to the HC/DA Program. The policy manual is not adopted by rule, nor is it incorporated by reference in any Department rule. However, the policy manual is consistent with the Department rules governing the HC/DA Program as well as the federal SSI rules. Section 2640.0115.02 of the policy manual provides that "gross income is used to determine eligibility" for the HC/DA Program. Section 1840.0102 of the policy manual provides that "[s]ome deductions withheld from gross income must be included as income" and that section specifically lists health insurance premiums as an example of such a deduction. Section 1840.0118 of the policy manual provides: A vendor payment is a money payment made for SFU [sic] expenses by an individual or organization outside of the SFU [sic] from funds not legally owed to the SFU [sic]. Vendor payments are excluded as income. . . . * * * Direct payments to a creditor or vendor on behalf of an individual are vendor payments and are excluded as available income to the individual with exception. When a vendor payment results in the individual directly receiving income, the income is included. . . . (Emphasis supplied.) Section 1440.1400 of the policy manual provides that: Individuals must apply for and diligently pursue to conclusion an application for all other benefits for which they may be eligible as a condition of eligibility [for the HC/DA Program]. Need cannot be established nor eligibility determined upon failure to do so. Section 1440.1400 specifically identifies retirement benefits and health insurance payments as examples of the other benefits for which the applicant must apply. Based upon his review of the policy manual, and particularly the sections quoted above, Mr. Menotti concluded that the health insurance subsidy is not a "vendor payment" and that it must be included in Petitioner’s gross income. Mr. Menotti conveyed this conclusion to Ms. Bolen. Thereafter, Ms. Bolen updated her calculations to reflect Petitioner's total monthly income as $1,684.00, which exceeds the income threshold for the HC/DA Program. Ms. Bolen then returned the application to Ms. Seymour. Based upon the economic self-sufficiency unit's determination that Petitioner's income exceeded the threshold for the HC/DA Program, Ms. Seymour notified Petitioner in writing on March 20, 2003, that she was "financially ineligible" to receive home care services. Ms. Bolen knew Petitioner when she was a Department employee. She and Ms. Seymour are continuing to work with Petitioner to identify Department programs for which Petitioner may be eligible. As of the date of the hearing, those efforts had resulted in Petitioner being found eligible for the Department's Medical Needy Program. Upon learning that her income exceeded the threshold for the HC/DA Program, Petitioner considered giving up the health insurance subsidy in order to reduce her income below the threshold. Ms. Bolen advised her not to do so. Ms. Bolen's advice was based upon Section 1440.1400 of the policy manual which does not allow an applicant for services under the HC/DA program to turn down other benefits or assistance that they may be eligible for. Had Ms. Bolen not given Petitioner this advice, Petitioner would have given up the health insurance subsidy for no reason. In a final effort to determine whether there was any means by which Petitioner could be found eligible for services under the HC/DA Program, Petitioner’s case was referred to Lynn Raichelson, an adult services policy specialist with the Department's Tallahassee office, for review. Ms. Raichelson contacted DOR to obtain information regarding the operation of the health insurance subsidy. She also contacted the Atlanta office of the SSA, which is the federal agency responsible for administration of the SSI program. Based upon information that she received from those sources, Mr. Raichelson concluded that the subsidy must be included as income in determining eligibility for services under the HC/DA Program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order denying Petitioner's application for services under the Home Care for Disabled Adults Program because her income level exceeds the threshold for the program. DONE AND ENTERED this 30th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 30th day of July, 2003.
The Issue Whether Petitioner has forfeited his rights and benefits under the City of Tampa General Employees Retirement Fund pursuant to section 112.3173, Florida Statutes (2009).
Findings Of Fact Respondent was a participant in Petitioner’s retirement benefits fund. The retirement fund qualifies as a public retirement system. Respondent was hired by Petitioner on February 16, 1998, and at the time of his termination from employment he worked as a sewer operations team leader in Petitioner’s wastewater collections department. According to the Notice of Disciplinary Action dated July 8, 2010, Respondent’s employment with the City of Tampa was terminated based on the following: During the course of an investigation by the Tampa Police Department, report #2010-900187, you admitted to the following violations of City of Tampa policy: Using a City issued cellular phone for non- City related phone calls which furthered illegal activity; and using a City issued vehicle to participate in activities not related to your employment; both of which are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(c)(9), Neglect of Duty, Use of City equipment, including vehicles, for any unauthorized purpose. Wearing a City issued uniform while conducting unauthorized and illegal activities, violating City of Tampa Personnel Manual, Discipline Administration, B28.2,3(b)(8), Insubordination, Inappropriate use of City identification, including uniforms. Further, your behaviors as revealed in the investigation by the Tampa Police Department, are incompatible with the moral and ethical standards expected of City of Tampa employees and these behaviors are violations of City of Tampa Personnel Manual, Discipline Administration, B28.2,3(d)(9), Moral Turpitude, Engaging in any employment, activity or enterprise which is illegal, incompatible or in technical conflict with the employee’s duties and responsibilities as a City employee. The instant proceeding, as noted in Petitioner’s PRO, does not focus on whether Respondent’s conduct violated the City of Tampa’s “moral and ethical standards,” but instead focuses on whether Respondent, during the course of an investigation by the Tampa Police Department, admitted to wearing his city-issued uniform, and using his city vehicle and cell phone in furtherance of illegal activity.1/ Background In 2010, Detective Korey Diener of the Pinellas County Sheriff’s Office, was involved in a long-term investigation involving counterfeit checks. As part of the investigation, Detective Diener was monitoring a suspect by the name of Shannon Edwards (Edwards). During a circuit court probation hearing on February 24, 2010, Edwards, who was acquainted with Respondent because they hung out in the same neighborhood, presented a State of Florida, Department of Corrections, Public Service Hours form, which indicated that he (Edwards) had completed his court-ordered community service hours. Another detective, who was also involved with the case, was present in the courtroom and knew that the form was falsified based, in part, on a surveillance conversation he heard between Edwards and his girlfriend, Chelsea Niles (Niles). During the surveilled conversation, Edwards asked Niles to contact Respondent so that he could secure for Edwards a form showing that Edwards had performed the required community service hours, when in actuality he (Edwards) had not. According to Petitioner, Edwards, while using Niles as his agent, reached out to Respondent because Respondent, as a city employee, “knew somebody” who could prepare the needed community service form. Mr. Edwards did not testify during the disputed-fact hearing, and his statement is not being accepted for the truth of the matter stated therein. Ross Fabian (Fabian) was Respondent’s contact person for securing the fraudulent form. Respondent’s undisputed, credible testimony is that he knew Fabian because as a juvenile, Respondent had gotten into trouble and performed his ordered community service hours under Fabian’s supervision. Respondent maintained a relationship with Fabian throughout the years, but there is no evidence that the relationship between the two was in any way connected to Respondent’s employment with the city. Petitioner seeks to infer from Edwards’ statement that Respondent was a “city employee that knows somebody,” the existence of a nexus between Respondent’s employment and the securing of the fraudulent form. The evidence is insufficient to support such an inference. Police Interview The predicate for the instant action lies in that portion of the Notice of Disciplinary Action which provides that during the course of an investigation by the Tampa Police Department, Respondent “admitted” to “[u]sing a City issued phone for non-City related phone calls which furthered illegal activity, using a City issued vehicle to participate in activities not related to your employment, and [w]earing a City issued uniform while conducting unauthorized and illegal activities.” The evidence of record does not establish that Respondent admitted to the conduct as alleged. On June 16, 2010, Respondent was interviewed by Detective Mike Victor of the Tampa Police Department and Detective Korey Diener of the Pasco County Sheriff’s Office. A transcript of the audio recording was admitted into evidence. During the interview, Respondent was asked about the phone that he used when speaking with Edwards about the fraudulent community service hours. In response to the question, Respondent informed the detectives that he used his personal phone when speaking with Edwards. At no point during his interview with law enforcement did Respondent admit to using a city-issued cell phone as part of the transactions related to the fraudulent form. Furthermore, in reviewing the transcript of audio recording, Respondent was never asked if he used his city truck or was wearing his city-issued uniform while interacting with Edwards, Fabian, Niles, or anyone else who may have been involved with the execution of the fraudulent community service form. Succinctly stated, the transcript of Respondent’s recorded interview does not in any way indicate that Respondent admitted to using his city truck, or to wearing his city-issued uniform while completing the transactions related to the execution of the fraudulent community service form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order: Finding that there is no nexus between Respondent’s conduct and his public employment; Finding that forfeiture of Respondent’s benefits under the retirement plan is not authorized pursuant to section 112.3173, Florida Statutes; and Dismissing the petition for forfeiture, with prejudice. DONE AND ENTERED this 8th day of February, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of February, 2017.
The Issue Whether the proposed rules, 60Z-1.026 and 60Z-2.017, Florida Administrative Code, published in the Florida Administrative Weekly on March 7, 2003 (Volume 29, No. 10, at pages 979-80), constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, Florida League of Cities, Inc. (“League”), is a not-for-profit Florida corporation located at 301 South Bronough Street, Suite 300, Tallahassee, Florida 32301. The League is a wholly owned instrumentality of its 405 member cities. The League’s purpose is to work for the general improvement of municipal government and its effective administration in this state, and to represent its members before the legislative, executive and judicial branches of Florida’s state government on issues pertaining to the welfare of its members. The League’s members include 175 cities with pension plans for firefighters established pursuant to Chapter 175; and 184 cities with pension plans for police officers established pursuant to Chapter 185. Petitioner Casselberry maintains a local law pension plan for its firefighters and police officers pursuant to Chapters 175 and 185. Casselberry’s pension plan was in effect on October 1, 1998. Casselberry’s pension plan meets all the minimum benefit requirements of Chapters 175 and 185. Casselberry’s police/fire pension plan provides benefits in addition to or greater than the pension benefits it provides to general employees that cost as much or more than the total amount of premium taxes received by the City of Casselberry. Petitioner Deerfield Beach maintains a local law pension plan for its police officers pursuant to Chapter 185, Florida Statutes. Deerfield Beach’s pension plan meets all the minimum benefit requirements of Chapter 185. Further, Deerfield Beach’s police pension plan provides benefits in addition to or greater than the pension benefits it provides to general employees that cost as much or more than the total amount of premium taxes received by the City of Deerfield Beach. Petitioner Greenacres maintains a local law pension plan for its firefighters and police officers pursuant to Chapters 175 and 185, Florida Statutes. Greenacres’ pension plan meets all the minimum benefit requirements of Chapters 175 and 185. Greenacres’ police/fire pension plan provides benefits in addition to or greater than the pension benefits it provides to general employees that cost as much or more than the total amount of premium taxes received by the City of Greenacres. Petitioner Kissimmee maintains a local law pension plan for its firefighters pursuant to Chapter 175. Kissimmee’s firefighter pension plan meets all the minimum benefit requirements of Chapter 175. Kissimmee’s firefighter pension plan provides benefits in addition to or greater than the pension benefits it provides to general employees that cost as much or more than the total amount of premium taxes received by the City of Kissimmee. Petitioner New Port Richey maintains a local law pension plan for its firefighters pursuant to Chapter 175. New Port Richey’s firefighter pension plan meets all the minimum benefit requirements of Chapter 175, and provides benefits in addition to or greater than the pension benefits it provides to general employees. These benefits cost as much or more than the total amount of premium taxes received by the City of New Port Richey. Chapters 175 and 185, govern the establishment and operation of defined benefit retirement plans for municipal police officers and firefighters employed by cities and special districts. These Chapters also contain a revenue sharing program that allows participating cities and districts to receive a portion of the state excise tax on property and casualty insurance premiums collected on policies covering property within each jurisdiction. In order to qualify for the annual distribution of premium tax revenues provided by Chapters 175 and 185, the local government pension plan must comply with the applicable provisions of those statutes. Sections 175.351(1) and 185.35(1), respectively, of those Chapters were amended in 1999 by Chapter 99-1, Laws of Florida. The two Sections are virtually identical and can be treated interchangeably for the purposes of this proceeding. Section 175.351(1), in pertinent part, reads as follows: PREMIUM TAX INCOME.--If a municipality has a pension plan for firefighters, or a pension plan for firefighters and police officers, where included, which in the opinion of the division meets the minimum benefits and minimum standards set forth in this chapter, the board of trustees of the pension plan, as approved by a majority of firefighters of the municipality, may: Place the income from the premium tax in Section 175.101 in such pension plan for the sole and exclusive use of its firefighters, or for firefighters and police officers, where included, where it shall become an integral part of that pension plan and shall be used to pay extra benefits to the firefighters included in that pension plan; or Place the income from the premium tax in Section 175.101 in a separate supplemental plan to pay extra benefits to firefighters, or to firefighters and police officers where included, participating in such separate supplemental plan. The premium tax provided by this Chapter shall in all cases be used in its entirety to provide extra benefits to firefighters, or to firefighters and police officers, where included. However, local law plans in effect on October 1, 1998, shall be required to comply with the minimum benefit provisions of this chapter only to the extent that additional premium tax revenues become available to incrementally fund the cost of such compliance as provided in Section 175.162(2)(a). When a plan is in compliance with such minimum benefit provisions, as subsequent additional premium tax revenues become available, they shall be used to provide extra benefits. For the purpose of this chapter, ‘additional premium tax revenues’ means revenues received by a municipality or special fire control district pursuant to Section 175.121 that exceed that amount received for calendar year 1997 and the term ‘extra benefits’ means benefits in addition to or greater than those provided to general employees of the municipality. Local law plans created by special act before May 23, 1939, shall be deemed to comply with this chapter. (Underscored language was enacted by Chapter 99-1, Laws of Florida.) The above-quoted underscored language of Sections 175.351 and 185.35 became effective March 12, 1999. The Division of Retirement advised all cities and districts that they could use additional premium tax revenues received in excess of the amount received for 1997 solely to pay for new extra benefits adopted after March 12, 1999. The additional premium tax revenues could not be used to pay for extra benefits adopted before March 12, 1999. Consequently, responsibility for the cost to local governments for extra benefits adopted prior to March 12, 1999, is not defrayed by additional premium tax benefits and must be absorbed by the particular local government. As established by testimony of Respondent's Actuary, Charles Slavin, along with Article X, Section 14 of the Florida Constitution and Part VII, Chapter 112, governmental pension plans must be funded on a “sound actuarial basis.” A plan is actuarially funded when funded by contributions which, when expressed as a percent of active member payrolls or a fixed dollar amount, will remain approximately level from year to year and will not have to be increased in the future, in the absence of benefit improvements. Actuarial funding is based on reasonable assumptions, predictable events and variables so that all the funds necessary to pay employees' future benefits are accumulated by the expected date of benefit payments. A pension plan is funded on a sound actuarial basis when a funding program has been established which, with the payment of level contributions and investment returns over the lifetime of the participants, will fund the difference between the value of expected promised benefits and the available assets. Although pension benefits increase in future years from increased salaries and other facts, pension plans are usually funded on a constant level percentage of payroll. Such funding pays the normal fiscal cost and amortizes unfunded liabilities as required by Chapter 112, Part VII. Payroll growth helps pay for increases in the cost of benefits because employee contributions, based on a level percentage of payroll produce increased funding. Liability increases are offset by payroll growth. Extra benefits for firefighters and police officers in excess of those provided general employees, that were enacted by local governments, prior to or after March 12, 1999, were required by law to be funded on a sound actuarial basis. Premium tax revenues to the local governments are not within the control of those local governments since the amount of tax levied is set by the legislature through statutory enactment. Accordingly, inclusion of future revenues in future years from the premium tax is not a proper actuarial assumption in the funding of extra benefits. Some local governments, despite this categorization of the premium tax revenue, enacted special benefits in reliance upon possible future increases in revenues from the tax to fund special benefits. All local government Petitioners in the present proceeding meet the minimum benefit requirements of Sections 175.162 and 185.16. The cost of extra benefits enacted by Petitioners prior to the effective date of Chapter 99-1 (March 12, 1999), generally exceeded the amount of the premium tax received by Petitioners. Respondent's requirement that Petitioners set aside additional premium tax revenues to fund solely future benefit increases prevented the reduction of future funds for future benefits. Respondent's proposed rules, 60Z-1.026 and 60Z-2.017, are identical with exception that one is applicable to Sections 175.351(1) and 185.35(1), respectively, and read as follows: Use of premium tax revenues: For pension plans that were in effect on October 1, 1998, that have not met the minimum benefit requirements described in Section 185.16, benefits shall be increased incrementally as additional premium tax revenues become available. For pension plans that were in effect on October 1, 1998, that provide benefits that meet or exceed the minimum benefits described in Section 185.16, increases in premium tax revenues over the amount collected for calendar year 1997, must be used in their entirety to provide extra benefits in addition to those benefits provided prior to the effective date of Chapter 99-1, Laws of Florida. For plans that were not in existence on October 1, 1998, premium tax revenues must be used in their entirety to provide extra benefits. Respondent interprets "additional premium benefits" as defined in Sections 175.351 and 185.35 to mean premium tax benefits greater than those received in 1997 and distributed to cities in 1998, prior to enactment of Chapter 99-1. "Extra benefits" means benefits greater than those afforded general employees and in addition to or greater than those benefits enacted prior to the effective date of Chapter 99-1. These definitions presume that amendments in Chapter 99-1 are to be applied prospectively, or after the effective date of that legislative enactment. Extra benefits enacted prior to that date must be funded from premium tax dollars received prior to that date. No evidence was presented by Petitioners of legislative intent that "additional premium tax revenues" should or could be used to fund existing extra benefits enacted prior to Chapter 99-1.
