Findings Of Fact At all times relevant hereto, Respondent, Harold I. Odle, held dental license number DN 0004379 issued by Petitioner, Department of Professional Regulation, Board of Dentistry. Respondent is engaged in the practice of dentistry at 3900 South Broadway, Fort Myers, Florida. On or about August 13, 1980, Wilfred H. Bauer went to Respondent's dental office where Respondent extracted Bauer's tooth number 17. On or about August 21, 1980, Bauer returned to Odle's office for removal of sutures placed in his mouth in connection with the extraction performed on August 13. The removal procedure was performed by Julia Hover, an employee in Respondent's office. It was not disclosed whether Hover was licensed as a dentist or dental hygienist in the State of Florida. The complainant in this case (Bauer) died in August, 1982 and accordingly did not appear and testify at the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion for directed verdict be GRANTED and the administrative complaint against Respondent be DISMISSED. DONE and ENTERED this 29th day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1982.
The Issue In this proceeding pursuant to Section 120.56(4), Florida Statutes, Petitioners Florida Association of Insurance Agents (the "FAIA") and Professional Insurance Agents of Florida, Inc. (the "PIA") (collectively, the "Agents") allege that a process governing so-called "renewal keep-outs," which is set forth in a manual that was produced by Respondent Florida Windstorm Underwriting Association (the "Association") and approved by Respondent Department of Insurance (the "Department"), constitutes a rule-by-definition that was not adopted under, and therefore violates, Section 120.54, Florida Statutes. This case presents several issues. As a threshold matter, it must be determined whether the Agents have standing. If they do, the ultimate issue will be whether the challenged process constitutes a rule-by-definition in violation of Section 120.54(1)(a), Florida Statutes. Embedded in the ultimate issue, however, is the first-impression question whether the Association is an "agency" subject to the provisions of Chapter 120, Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties The FAIA. The FAIA is a nonprofit, voluntary trade association of independent insurance agencies. The FAIA has approximately 1100 member agencies that employ somewhere in the neighborhood of 12,000 insurance agents. ("Captive" insurance agents that represent a single company, such as agents for State Farm and Nationwide, and most Allstate agents, are not eligible for membership in the FAIA.) Generally speaking, the FAIA advocates on behalf of its members in all arenas, including the Department, in which it may protect and promote the business interests of independent insurance agents. The FAIA regularly represents its members' interests in regulatory matters involving the Department. Additionally, the FAIA lobbies, sponsors continuing education programs, publishes manuals, and sells products and services to its members, including errors and omissions coverage. The PIA. Like the FAIA, the PIA is a nonprofit trade association. Its membership is comprised of independent insurance agents. It provides many of the same services as the FAIA and regularly works with the FAIA to advance their common interests, including in matters involving the Department. The PIA has approximately 450 members. The Association. The Association is a nonprofit association that the Department organized in 1970 pursuant to authority delegated by the legislature. See Section 627.351(2), Florida Statutes. The statute that enabled the creation of the Association effectively mandates that each insurer holding a certificate of authority to transact property insurance on a direct basis in this state must be a "member" of the Association. As required by statute, the Association issues windstorm-only insurance policies to eligible beneficiaries. These policies provide coverage for losses from property damage due to windstorm, hail, and hurricane risks, but they do not cover other perils, such as fire and theft, that are commonly insured under a standard homeowners' policy. To be eligible for an Association policy, an applicant must live in an area (i.e. near the coast) where windstorm coverage is not available in the admitted voluntary market. Thus, the Association creates and serves what is known as a "residual market," meaning a market that makes coverage available for risks that admitted insurers, competing in the voluntary market, refuse to accept. A residual market is in essence a market of last resort for otherwise uninsurable risks. Because Association policies provide windstorm-only coverage, policyholders of the Association who desire multiperil homeowners' insurance must purchase a second policy from another insurer, either in the admitted voluntary market or, as a last resort, the Florida Residential Property and Casualty Joint Underwriting Association. The policy from the second insurer will exclude windstorm coverage. This type of policy is commonly called an "ex-wind" policy. The Association does not employ insurance agents. Every licensed agent in the state, however, is authorized to write policies for the Association. It was estimated by a representative of the FAIA who testified at hearing that approximately 60 to 70 percent of that association's member agencies place business in the Association——a figure that was not rebutted. Moreover, because nearly all of the coastal areas of Florida, including such major population centers as Miami- Dade, Broward, Palm Beach, and Pinellas Counties, are eligible for Association coverage, the trier has drawn the reasonable inference that a substantial number of licensed agents, and hence, correspondingly, a substantial number of the Agents' members, are involved in writing Association policies. The Association is funded not only through premiums and surcharges paid by its policyholders but also with assessments collected from "member" insurance companies and property policyholders throughout the State of Florida. The Association assesses "member" insurers based upon the proportion that an individual carrier's total written premiums in a given year bears to the overall premiums written statewide by all admitted property insurers in that year. In the event the Association receives insufficient revenues to pay losses in a given year, it has the power to levy emergency assessments against all "member" insurers to meet the deficit. The Association is governed by a 15-member board of directors (the "Board"). Twelve of the directors are representatives of the Association's insurer "members," one of the directors is appointed by the Governor, one is appointed by the Insurance Commissioner, and one is the Department's consumer advocate. The Association operates pursuant to a "plan of operation" that the legislature directed the Department to adopt. The Association's first Plan of Operation was adopted in 1970; it has since been amended and revised from time to time, most recently as of October 3, 2000. This latest version of the Amended and Restated Plan of Operation and Articles of Agreement (the "Plan"), which was in effect at all times material to this case, was adopted by the Department as a rule (Rule 4J-1.001, Florida Administrative Code), effective January 8, 2001. Any proposed amendment to the Plan must be approved by the Department through the adoption of such amendment as a rule. The Association must administer the Plan, through its Board, in compliance with Section 627.351(2), Florida Statutes, and in accordance with the provisions of the Plan and such other rules as the Department may adopt. The Board's administration of the Plan is supervised by the Department. In the exercise of its duty to oversee the Association, the Department, through its employees, attends and participates in meetings of the Board and various committees appointed thereby. The Department's authority over the Association is plenary, or very nearly so, for ultimately the Association can do no more than what the Department, through a plan of operation, allows it to do. Indeed, the legislature has granted the Department broad authority to implement the windstorm insurance program required by Section 627.351(2), Florida Statutes, through any number of vehicles of the Department's choosing. Thus, if it wanted to, the Department could dissolve the Association and replace it with another plan for carrying out the legislature's mandate that otherwise uninsurable windstorm risks be equitably apportioned between and among all admitted property insurers. In sum, the Association performs a private sector function (the transaction of insurance), but it does so exclusively in an artificial, non-competitive market of the state's creation. Although the Department subjects the Association to essentially the same regulatory scrutiny as any private insurer doing business in Florida, the fact remains that the Association is fundamentally an instrumentality of the Department. Therefore, the Association is a unique entity that is materially different and readily distinguishable from its insurer "members." The Department. The Department is the executive branch agency charged with administering the Florida Insurance Code. Among other things, as mentioned above, the Department has been given the responsibility of executing the legislature's will as it relates to the apportionment of uninsurable windstorm risks. In furtherance of this particular duty, the Department has created, and exercises considerable control over, the Association. The Renewal Keep-Out Program Depopulation. In the wake of catastrophic losses caused by Hurricane Andrew, the Association and the Department, responding to legislative calls to action, have undertaken to "depopulate" the Association. "Depopulation" refers to the removal of risks from a residual market when market factors indicate that the residual market is not truly a market of last resort. Put simply, "depopulation" means reducing the number of policies underwritten by the Association, and transferring those risks to private insurers willing to underwrite the risks. "Renewal keep-out" is a particular method of depopulating the Association; it is the form of depopulation that has spawned the instant dispute. (Other means of depopulation, which are not directly in issue, include assumption of existing policies and "new application" keep-out.) Renewal keep-out, like other depopulation methods, follows from the statutorily-prescribed eligibility criterion that opens the door to Association coverage only for those who are unable to obtain an offer of coverage from an admitted insurer at approved rates. In this instance, if an admitted insurer tenders an offer of coverage to a policyholder of the Association under which the offeror would provide windstorm insurance to that policyholder upon the expiration of his or her Association policy, then that policyholder's eligibility is terminated, and the Association will not renew his or her policy——hence the term, renewal keep-out. A renewal keep-out program, then, is one which allows an insurer to select certain policies in a residual market and extend an offer of coverage to the chosen policyholders in order to remove those risks from the residual market at the time of renewal. The "take-out" or "keep-out" carrier, as it is called, selects policies according to the particular risk factors presented by a given set of policies, understandably looking to cherry-pick the best risks in the pool. The Alleged Rule-By-Definition. To implement the statutory mandates and provide for depopulation in an organized fashion with minimum disruption to policyholders, the Association and the Department collaborated to develop a detailed set of implementation procedures and rules governing the various depopulation methods, including renewal keep-out. These procedures, rules, and forms are compiled in a manual entitled FWUA Eligibility Procedures for Reviewing Offers of Coverage from Admitted Companies (the "Manual"). Though issued in the name of the Association, the Manual is a joint work product of the Association and the Department. The Department was intensely involved in the development of the depopulation and renewal keep-out procedures contained in the Manual. It provided extensive substantive and stylistic input, editing drafts of the document and proposing many revisions that were incorporated into the Manual. The Department's comments were not suggestions: Had the Association refused to incorporate the Department's proposed changes, the Department would not have approved the Manual for use. The Association initially submitted the Manual to the Department on September 20, 2000, for approval as a "rule and form" filing. After further revisions were made, the Department stamped the Manual "APPROVED FOR USE," effective January 1, 2001. Neither the Department nor the Association has attempted to promulgate the Manual as a rule pursuant to Section 120.54, Florida Statutes. The Department approved the Manual pursuant to a process that is normally used for the review and approval of private insurers' underwriting rules. Ordinarily, the Department's approval of an insurer's underwriting rules signifies that the rules may be used by the filing insurer——and no one else. Respondents argue that because the Department approved the Manual in this fashion, the Manual must be regarded as the equivalent of a private insurer's underwriting rules. The evidence shows, however, that the Manual does not, in fact, set forth underwriting rules like those of a private insurer. The general purpose of the Manual is described therein as being to assist an insurer seeking to make a qualified offer of coverage that would: Render an applicant ineligible for coverage in the [Association] (Keep Out); Render an expiring policy ineligible for coverage in the [Association] (Renewal Keep Out); Transfer [Association] policies to an authorized insurer (Assumption). Manual, at p. 2. The Manual further states that: In order for the [Association] to determine that a policyholder currently being written by the [Association] is ineligible for further coverage, an insurer must demonstrate: The company is an authorized insurer; It has made a qualifying offer of coverage pursuant to section 627.351(2)(b)5e.; It can comply with these procedures and provide for a smooth transition of policies. Id. In other words, in short, the Manual provides the procedures and criteria by which the Association will evaluate a keep-out carrier's coverage offer and determine whether such offer "qualifies" as an eligibility-terminating offer. All companies that want to remove business from the Association must comply with the procedures set forth in the Manual. Thus, the Manual purports to regulate private insurers, not as "members" of the Association, but as competitors in the admitted voluntary market (into which recipients of eligibility-terminating offers are thrust). This sort of sweeping regulation is not the stuff of a routine "rules and forms" filing by a private insurer; private insurers do not have the power to promulgate regulations of the sort prescribed in the Manual. A section of the Manual, under the heading, "PROCESS APPLICABLE TO RENEWAL KEEP OUTS," describes the procedures that govern the Association's Renewal Keep Out Program. These procedures——which, together with certain forms identified therein, comprise the "statement" that the Agents claim is a rule-by-definition——will hereinafter be referred to collectively as the "Program." The Program, minus the applicable forms, is reproduced in Appendix A attached to this Final Order. Implementation of the Program: Atlantic Preferred Pursuant to the Program, the Association has approved a plan, put forward by an insurer called Atlantic Preferred, to remove approximately 47,000 Association policies. The Atlantic Preferred coverage offer, which the Association has determined qualifies as an eligibility-terminating offer, proposes to insure existing Association policyholders under a multiperil homeowners' policy that includes windstorm coverage. According to the terms of the Program, each policyholder who receives the Atlantic Preferred offer will be ineligible for coverage with the Association for at least one year following the date his or her Association policy would have renewed. On or about March 27, 2001, the Association sent out the first notices of nonrenewal to policyholders selected by Atlantic Preferred. Recipients of these notices became ineligible for Association coverage as of, or around, July 3, 2001. Policyholders who receive a nonrenewal notice will be faced with the "choice" of either accepting Atlantic Preferred's offer or rejecting that offer and being without windstorm coverage for a minimum of one year unless a more attractive offer of windstorm insurance can be obtained in the admitted voluntary market, which is highly improbable. It is reasonable to infer, and so found, that few, if any, property owners living in Florida's hurricane-prone coastal areas will choose to go "bare" rather than accept Atlantic Preferred's offer. Most if not all of the recipients of Atlantic Preferred's offer carry ex-wind insurance policies that were written through an agent. A property owner who purchases Atlantic Preferred's multiperil policy in accordance with the eligibility-terminating offer will need to cancel his or her existing ex-wind policy to avoid overlapping insurance——which will sever not only a business relationship with the ex-wind insurer but also, possibly, ties to the agent that placed the ex-wind policy. At a minimum, an agent whose client receives an offer from Atlantic Preferred stands to lose some of that client's business unless he or she can obtain an appointment from Atlantic Preferred. It is estimated that approximately 32,000 of the polices that Atlantic Preferred has targeted for removal were written by independent agents. It is reasonable to infer, and so found, that a substantial number of these agents are members of the Agents and are likely to be affected by the Atlantic Preferred renewal keep-out plan.
The Issue The issue in this proceeding is whether Petitioner is entitled to change his dental benefit election in the State Group Insurance Program for the 2016 plan year.
Findings Of Fact At all times relevant hereto, Petitioner was an employee of the Department of Management Services (DMS) and was a participant in the State Group Insurance Program.2/ Petitioner was enrolled in dental benefit coverage for the 2015 plan year. Each year during open enrollment, program participants may elect new benefits or change benefits for which they are enrolled. Open enrollment usually occurs during a two-week period in the fall of each year. Benefits, including insurance plans, are administered by a private contractor, Northgate Arinso, through an online system known as “People First.” Petitioner intended to change his dental insurance coverage during the open enrollment period for the 2016 plan year. On October 21, 2015, Petitioner logged on to the People First website and viewed the “Change My Benefits” screen. Petitioner had researched the various coverages available well in advance of enrollment, and knew he wanted to enroll in a preferred provider plan offered by Humana. Petitioner found the plan he was seeking and selected “next” from prompts on the computer screen. Petitioner remembers next selecting “confirm” from the screen prompts, and reported that the next, and last, computer screen he saw was the People First home screen. Petitioner did not review a confirmation of benefits statement confirming his intended change in dental benefits. Petitioner then viewed the page displaying his current benefits, which showed the same dental coverage he had for the 2015 plan year. Petitioner asked his co-worker, Alison Bonnell, when the system would reflect his change in dental coverage, and she replied that it would not change until January 2016. Petitioner asked his supervisor, Heather Cleary, how he could view the change he had made. Ms. Cleary, who was new to DMS, stated she did not know, but suggested Petitioner contact human resources if he needed assistance. Petitioner made no further inquiries regarding his dental benefits until January 1, 2016, when he logged in to People First and viewed the “My Benefits” page, which showed the same dental coverage in which he was enrolled for the 2015 plan year. Petitioner alleges that he effectively changed his dental coverage for the 2016 plan year, but that, due to an error in the People First system, his election was not saved. Petitioner now seeks to change his dental benefit effective for the 2016 plan year. During open enrollment for the 2016 plan year, the People First website required all eligible participants to first complete a process verifying their mailing and email addresses, then certifying their dependents. Following completion of that confirmation and verification process, the system presented participants with the home screen from which participants could choose from a number of tabs, including “Health & Insurance.” The Health & Insurance page provided the following options: General Benefits Information Go to the MyBenefits website for your insurance options. Your Benefits Review your current and past benefits. Insurance Companies See contact information. Your Dependents’ Information View and update dependents’ information. Change My Benefits Makes changes with a qualifying event. Click here for open enrollment. Benefit Premium History Review your insurance payment history. Benefits Materials View and request insurance forms and booklets. Confirmation Statement View your confirmation statement. If a participant selected “Change My Benefits,” the participant was presented with a screen to choose the event triggering enrollment--new hire or open enrollment. Selecting “open enrollment” revealed an enrollment summary screen with a chart listing the categories of “health,” “basic life,” “optional life,” “dental,” and “vision” coverage in the left- hand column. If the participant was enrolled in one of the options, the chart listed the name of the plan in which they are enrolled in the middle column, and, in a column titled “make a change,” the participant could select “cancel” to cancel that coverage. For all other options, the participant could select “add” in the “make a change” column to enroll in a plan. If a participant selected the option to “add” a plan, they were navigated to a screen which displayed all the choices for that type of coverage, in this case dental coverage. Once a coverage plan was selected, the program prompted the participant to “complete enrollment.” At the bottom of the enrollment summary screen, participants were presented with the following statement: By selecting “Complete Enrollment,” I hereby certify that the information entered is true and correct and that all dependents listed above are eligible. I understand that my elections can only be changed during Open Enrollment or as the result of a Qualifying State Change event as defined by the Internal Revenue Code and/or the Florida Administrative Code. I agree to notify People First of any QSC events within the prescribed time frame and to supply the appropriate supporting documentation upon request; otherwise, any requested changes will not be allowed. If any dependent is determined to be ineligible or I fail to notify People First of a loss of elibility or any supporting documentation is not provided upon request, I understand that I may be liable for any and all claims paid for any dependent deemed ineligible. Following this statement was a box in which the participant must enter his or her password and select “Complete Enrollment.” Upon selecting “Complete Enrollment,” participants were notified that a confirmation statement was available in the People First system for his or her review. A participant must have returned to the home screen and selected “Confirmation Statement” to view the statement to confirm any change in his or her elections. Petitioner testified that he did not enter his People First password to complete his enrollment on October 21, 2015. Rather, Petitioner reported that, because he was redirected to the People First home screen after selecting the dental plan option he was seeking, he was not prompted to complete his enrollment. Petitioner did not select the “Confirmation Statement” tab and review any statements in the system for his account. Petitioner did select the “My Benefits” tab, which confirmed the same dental coverage which he had selected for the 2015 plan year. Petitioner did not contact the People First service center for assistance. Dwayne Purifoy has served as operations manager for Northgate Arinso for 12 years. Mr. Purifoy oversees the operation of the People First program. Mr. Purifoy admitted that if the People First program “timed out” during the selection process, the participant would not receive a notification to that affect, and any changes the participant made would not be saved. The People First program records participant interactions with the system, including when a participant logs in, views benefits, and changes benefits. The system record shows that Petitioner logged in to the “Change My Benefits” page on October 21, 2015. The system does not contain a record that Petitioner changed any of his selected benefits during the open enrollment period. The preponderance of the evidence supports a finding that Petitioner, despite his intentions to the contrary, did not complete a change to his dental benefit election under the State Group Insurance Program for the 2016 plan year. Petitioner did not experience any QSC event during the 2016 plan year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order denying Petitioner's request to change his dental benefit coverage in the State Group Insurance Program for the 2016 plan year. DONE AND ENTERED this 24th day of May, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of May, 2016.
Findings Of Fact William Cecil Graham is licensed by the Florida State Board of Dentistry and at all times herein involved was so licensed. Dr. Graham began treating Mrs. Dover Stokes in August 1977, and during the time Mrs. Stokes was a patient, Respondent performed oral surgery, extractions and prepared upper and lower partial plates. All this work was done in Respondent's office located at 16580 Northwest 10th Avenue, Miami. For this work Mrs. Stokes paid Respondent approximately $500. Mrs. Stokes suffers from glaucoma and is nearly blind. She began going to Respondent for treatment upon the recommendation of one of Mrs. Stokes' roomers who is a cousin of Respondent. This roomer generally provided Mrs. Stokes transportation to and from Respondent's office for treatment. After the impressions for the plates had been taken and close to the time these plates were delivered to Respondent, he suddenly had to leave the Northwest Miami office. He advised Mrs. Stokes, and presumably his other patients, of his imminent departure and that he would contact her when relocated. Since he had by then received the partial dentures, Mrs. Stokes asked him to bring them to her. Respondent had been to Mrs. Stokes home on previous occasions to collect payments and he agreed to bring the plates to her. When Respondent took these plates to Mrs. Stokes, he brought along a portable hand grinder to adjust the plates. During this visit, Respondent tried the plates in Mrs. Stokes' mouth and she found them tight. After making some adjustments, Respondent left with the plates for additional adjustment. No instrument was used in Mrs. Stokes' mouth while the plates were being fitted at her home. Respondent returned to Mrs. Stokes' home in early November 1977, inserted the plates and made additional adjustments. Mrs. Stokes was happy with the plates at this time. Upon leaving, Respondent advised Mrs. Stokes that he would contact her as soon as he was relocated in an office. After not hearing from Respondent and experiencing discomfort with her plates, Mrs. Stokes began searching for Respondent. Mrs. Stokes testified that she called Graham's home and his wife couldn't tell her how to contact Graham. Respondent testified that Mrs. Stokes called his home, spoke to his wife who relayed Mrs. Stokes message to him, and that he called Mrs. Stokes in early January 1978. At this time, Graham was still without an office. During this conversation, Mrs. Stokes expressed her dissatisfaction with Respondent. When he offered to send her to another dentist, Mrs. Stokes said she didn't want another black dentist. At this point Respondent realized further communication with Mrs. Stokes was impossible and he suggested that she select a dentist and he, Graham, would pay for the treatment she needed. Mrs. Stokes doesn't recall this conversation; however, Respondent's testimony in this regard is accepted as the true version of what happened. Mrs. Stokes next contacted the State Dental Board with her complaint about Respondent. The matter was referred to a Board member in Miami, Marshall A. Brothers, who telephoned the number of the office in Northwest Miami where Stokes had previously worked and was advised the whereabouts of Graham was unknown. Dr. Brothers did not speak directly to one of the dentists in the Northwest Miami office when the call was made to locate Graham. No correspondence was sent to the office previously used by Respondent. When Brothers was unable to contact Graham, he did nothing further to investigate the treatment that had been provided Mrs. Stokes by Respondent. In July 1978, Respondent opened an office on Northwest 54th Street in Miami. Mrs. Stokes telephoned the office and Respondent returned her call. He offered to examine her teeth, but Mrs. Stokes said she didn't want him to work on her. Respondent then renewed his offer to Mrs. Stokes to select a dentist of her choice, have him do the necessary work, and he, Graham, would pay for it. Mrs. Stokes then visited a dentist close to her home and advised him that Respondent would pay for the treatment. This dentist, Dr. Efrom, called Respondent who confirmed that he would pay for the treatment Mrs. Stokes required. Dr. Efrom found some rough places on the plates which he polished, corrected some sore spots in Mrs. Stokes' mouth, filled a cavity, and his technician cleaned Mrs. Stokes' teeth. Respondent paid for this treatment, although he had not contracted to fill a tooth for Mrs. Stokes or to do the cleaning.
The Issue The issue in this case is whether the Florida Insurance Commissioner should discipline the Respondent, Brian Craig Parker, for alleged violations of the Insurance Code.
Findings Of Fact The Respondent, Brian Craig Parker, is a licensed health and life insurance agent. He had a contract with Denticare appointing him to act as Denticare's agent in selling prepaid dental insurance. On or about March 19, 1992, the Respondent, acting as an insurance agent, met with Christine Gamse and accepted her application for Denticare coverage and her check in the amount of $75, representing a $60 premium, plus a $15 "policy fee." The Respondent never submitted Gamse's Denticare application or premium to the insurer. In May, 1992, Gamse complained to Denticare that she still was not covered. Denticare confirmed that Gamse was not covered and offered to telephone the Respondent. When contacted by Denticare, the Respondent stated that he thought he had sent the application and premium to Denticare but that he had been very busy and that his recall was sketchy. Denticare had Gamse reapply directly to Denticare. On or about April 3, 1992, the Respondent, acting as an insurance agent, met with Donald Naegele for the purpose of presenting two dental insurance policies. Naegele decided to apply for Denticare dental insurance. The Respondent advised Naegele to write the Respondent a check in the amount of $104 to accompany Naegele's insurance application, representing a $89 premium, plus a $15 "policy fee." The Respondent told Naegele that he would submit the application by April 20 and that Naegele's coverage would be effective on May 1, 1992. The Respondent negotiated Naegele's check on or about April 7, 1992, but he never submitted Naegele's Denticare application or premium to the insurer. On or about May 1, 1992, Naegele attempted to use Denticare to pay for dental services and was informed that he was not covered by Denticare. He telephoned the Respondent several times and left messages on an answering machine but none were returned. He then telephoned Denticare, and it was confirmed that Naegele was not covered. Denticare offered to telephone the Respondent to resolve the matter. Soon after telephoning Denticare, Naegele got a telephone call from the Respondent, who offered to refund Naegele's $104. Within a few days, Naegele received the Respondent's check for the refund. Under the Respondent's agency contract with Denticare, the Respondent was not authorized to charge a policy fee. The Respondent's commission for Denticare policies was to be paid by Denticare out of the initial premium. Although the contract allowed the agent to ask for additional compensation, the Respondent did not do so, and Denticare would not have allowed him to charge a $15 policy fee. Under the Respondent's contract with Denticare, the Respondent was to promptly submit applications and premiums received from insureds. If Denticare received an application and premium by the 20th of the month, coverage would be effective on the 1st of the following month. If the Respondent had timely submitted their applications and premiums, both Gamse and Naegele would have had coverage by May 1, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order revoking the license of the Respondent, Brian Craig Parker, to act as a health or life insurance agent in the State of Florida. RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1994. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Brian Craig Parker 4004 Bainwood Court Tampa, Florida 33614 Brian Craig Parker 15713 Woodcock Place Tampa, Florida 33624 Tom Gallagher State Treasurer & Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issues for determination in this proceeding are whether Respondent violated Section 466.026(2)(a), Florida Statutes, by using the initials "D.D.S." after his name on business stationary and by testifying as an expert in administrative proceedings.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and regulating licensees on behalf of the state. Respondent is not licensed in this or any other state as a dentist and is not an applicant for a license as a dentist. Respondent was educated as a dentist, was formerly a licensed dentist in New York, and practiced dentistry for approximately 27 years until his license was revoked more than five years ago. Respondent also has a juris doctor ("J.D.") degree from the University of Miami Law School and, except for the ethics portion, has satisfactorily completed the Florida Bar examination. Respondent is a shareholder, executive director, and consultant in Dental-Legal Advisors, Inc. ("DLA"). Respondent gives advice in the fields of dental practice management and bio- ethical issues. Respondent provides advice to government, insurance companies, attorneys, and dentists. Respondent appears regularly on television and has spoken before the Dade County Legislative Assembly and Palm Beach County Commission. Respondent's specialty is dentistry. The majority of Respondent's work is comprised of giving advice to attorneys and dentists concerning the ethics, science, and law involved in dentistry and representing physicians and dentists in administrative proceedings against the Department of Professional Regulation. Respondent uses the initials "D.D.S." in conjunction with the initials "J.D." on the letterhead of DLA. Respondent never uses the initials "D.D.S." without the initials "J.D." or vice versa. Respondent explains during every encounter that he is not licensed to practice dentistry in any state and does not practice dentistry. It is necessary for commercial reasons for Respondent to use his academic degrees to inform his clients of his ability to provide the advice sought. As Respondent testified: It's important for somebody in the profession to understand that they can talk to me. . . . I speak law and I speak tooth. I can explain the law to dentists in words they understand; I can explain dentistry to lawyers in words they understand. And so that says I really speak two languages and I may be able to help you. Transcript at 30. Respondent's use of the initials "D.D.S." after his name does not represent Respondent as being able to practice dentistry within the meaning of Sections 466.03(3) and 466.026(2), Florida Statutes. 1/ The letterhead used by Respondent clearly is not the letterhead of a dental practice. The letterhead reads, "Dental- Legal Advisors, Inc." The names of three board members, including Respondent's name, appear in the upper left corner below the letterhead. Each name is followed by various initials. Respondent's name is the first name and is followed by the initials "D.D.S." and "J.D." The second board member's name is followed by the initials "D.D.S.", "J.D.", and "F.A.G.D." The third board member's name is followed by the initials "Esq." Clearly, the foregoing initials are not those customarily found on the letterhead of a dental practice. Under the circumstances, the initials represent Respondent's educational qualifications and qualifications as a consultant rather than his ability to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury or physical condition of the teeth, jaws, or oral- maxillofacial region. 2/ Respondent's prior testimony as an expert witness in an administrative proceeding did not constitute the practice of dentistry. Respondent was accepted as an expert witness by Hearing Officer Stephen Menton in Department of Professional Regulation, Board of Dentistry v. Steven Rindley, D.D.S., DOAH Case No. 89-0648. Hearing Officer Menton found that the expert witnesses called by Dr. Rindley were more persuasive than those called by the Department of Professional Regulation and recommended that the charges be dismissed. The issue in Rindley was whether Dr. Rindley could proceed with treatment without a contemporaneous x-ray when the patient refused the x-ray recommended by Dr. Rindley. The issue was not one of dentistry because Dr. Rindley advised the patient to take the x-ray. The issue was a bio-ethical issue of whether Dr. Rindley could proceed after the patient refused the x-ray. As an expert witness, Respondent reviewed the records, reached conclusions based on the dental records, and formed the opinion that Dr. Rindley could proceed and that the patient had the right to refuse any treatment for any reason. Respondent did not diagnose, prescribe, or treat any disease, pain, deformity, deficiency, injury or physical condition of the teeth, jaws, or oral- maxillofacial region. 3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the charges in the Administrative Complaint. RECOMMENDED this 26th day of January, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993.
The Issue The issue in this case is whether Respondent's intended decision to reject all proposals submitted in response to Request for Proposal No. R106885GM-Group Dental Insurance (the RFP) is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact The Lee County School District (District) currently offers two dental plans through Delta Dental, a DPO (Indemnity) and a DHMO plan to its approximately 10,000 eligible employees. Delta Dental has held the group insurance contract for approximately 12 years. The District had required its dental plan provider, if an insurance carrier, to have an AM Best rating of A- or higher. Delta Dental had had an AM Best rating of A-, but its rating had slipped to a B++. Delta Dental notified the District of the change in its AM Best rating. Upon learning of the change in the rating, the District decided to issue a request for proposals for its group dental plans. Susan Strong (Ms. Strong), who has been the director of insurance for the District for 15 years, chaired the insurance task force (ITF), which was responsible for the procurement of group insurance. Ms. Strong was also a member of the subcommittee of the insurance task force, which was responsible for drafting, issuing, and evaluating the proposals and making a recommendation to the ITF. The RFP required that the proposers who were insurance carriers have an AM Best rating of A- or higher. On June 3, 2010, the RFP was issued by the District. Dr. James W. Browder (Dr. Browder), who was at that time the superintendent of schools for Lee County, approached Ms. Strong requesting that she convene the ITF to consider lowering the AM Best rating so that Delta Dental could qualify to submit a proposal. The ITF was convened and voted to lower the AM Best rating to B++. An addendum to the RFP was issued on June 25, 2010, lowering the AM Best rating to B++ and changing the date for submittal of proposals to July 8, 2010. Pertinent provisions of the RFP provide: Objective: The objective of this Request for Proposal (RFP) is to provide a comprehensive Group Dental Insurance, with benefits equal to or superior to those of the current dental insurance plan, to the employees of the School District of Lee County, Florida (hereafter referred to as "SDLC"). SDLC is soliciting Proposals for DHMO and DPO/Indemnity group dental benefits. The vendors are requested to quote DHMO, DPO/Indemnity options, or both. If you cannot provide all of the plan options requested, you may propose one or more of the options. The successful vendor should also offer its product(s) at competitive prices, similar to the current dental insurance plan, and guarantee rates for a minimum of two (2) years to ensure price stability for plan members. Background: * * * In order to properly evaluate the financial impact of these plans, this RFP requests data necessary to properly evaluate the plan proposed. Proposers who do not provide the requested information may be negatively impacted during the scoring process. * * * 2.10 One manually signed original (clearly marked as such), ONE (1) electronic version in Word 6.0 or higher on CD or diskette and SIX (6) Photocopies of the proposal must be sealed in one package and clearly labeled "REQUEST FOR PROPOSAL FOR GROUP DENTAL INSURANCE" on the outside of the package. The legal name, address, proposal's contact person, and telephone number must also be clearly annotated on the outside of the package. (Emphasis in original) * * * Minimum Eligibility In order to be considered for award and to be further evaluated, proposer must meet or exceed the following criteria. The proposer is responsible for providing the following information in their responses. The proposer should also include a statement of acknowledgement for the item below. Proposer shall be appropriately licensed in the State of Florida to provide dental insurance. * * * The Insurance Task Force Sub-Committee (hereinafter referred to as "Committee"), SDLC, or both reserve the right to ask questions of a clarifying nature once proposals have been opened, interview any or all proposers that respond to the RFP, or make their recommendations based solely on the information contained in the proposals submitted. The Committee shall evaluate all proposals received, which meet or exceed Section 4.2, Minimum Eligibility Requirements. The Committee reserves the right to ask questions of a clarifying nature and interview any or all proposers that meet or exceed Section 4.2. . . . The Evaluation Committee reserves the right to interview any or all proposer(s) and to require a formal presentation and clarification questions with the key people who will administer and be assigned to work on the contract before recommendation of award. The interview is to be based upon the written proposal received. The Superintendent will recommend to the School Board, the award or rejection of any or all proposal(s). The School Board may award or reject any or all proposals. * * * The District will make an award to the company whose proposal is most advantageous to the District with respect to benefits/services, costs and other factors. All proposals should be submitted initially with the most favorable terms. If additional information or clarification is required, the proposer shall be prepared to submit such information in a timely manner. Award of benefits/services contracts is subject to negotiation, and the District may undertake simultaneous negotiations with those companies who have submitted proposals. The District reserves the right to waive formalities, technicalities, or irregularities in any proposal, to reject any or all proposals in whole or in part, with or without cause, to re-advertise, or to accept the proposal which, in its judgment, will be in its best interest. The District reserves the right to accept or reject any or all proposals. The District reserves the right to waive any irregularities and technicalities and may, at its sole discretion, request a clarification or other information to evaluate any or all proposals. The District reserves the right, before awarding the contract, to require proposer(s) to submit evidence of qualifications, contact references or any other information the District may deem necessary. * * * 6.1.5 The District reserves the right to: (1) accept the proposals of any or all of the items it deems, at its sole discretion, to be in the best interest of the District; and (2) the District reserves the right to reject any or all items proposed or award to multiple proposer(s). * * * 6.3.1 Bidders are hereby advised that they are not to lobby with any District Personnel or Board Members related to or involved with this bid. All inquiries must be written and directed to the Department of Procurement Services. (Emphasis in original) Lobbying is defined as any action taken by an individual, firm, association, joint venture, partnership, syndicate, corporation, and all other groups who seek to influence the governmental decision of a Board Member or District Personnel on the award of this contract. Any bidder or any individuals that lobby on behalf of a bidder will result in rejection/disqualification of said bid. 6.4.1 In order to maintain comparability and enhance the review process, it is required that proposals be organized in the manner specified in Section 4.1. Include all information in your proposal. It is required that SIX (6) copies of the proposal be submitted with the original proposal (clearly marked as such) and ONE (1) electronic version in Word 6.0 or higher on CD or diskette. (Emphasis in original) The proposals in response to the RFP were submitted on July 8, 2010. Among the proposers who submitted proposals were Ameritas Life Insurance (Ameritas); CIGNA Dental & Connecticut Life Insurance Company (CIGNA); Delta Dental, Humana, United Concordia Dental Care; Metlife; and the Standard. On July 8, 2010, after the proposals had been opened, an e-mail was sent by the District to Ameritas, requesting that Ameritas provide the electronic version of the proposal as required by Sections 2.10 and 6.4.1 of the RFP. On July 9, 2010, the District sent an e-mail to the Standard, requesting that it supply an electronic version of its proposal in a CD format. The Standard had supplied a PDF format, which was not acceptable. On July 20, 2010, an e-mail was sent by the District to several proposers, requesting that a copy of their licenses to provide dental insurance in Florida be sent. The e-mail stated that the submittal of the license was required pursuant to Section 4.2.1 of the RFP. However, Section 4.2.1 does not require that a copy of the license be submitted; it requires only that the proposer be licensed. No evidence was presented that details how these proposers addressed the issue of licensure in their proposals. Section 6.1.3 of the RFP does allow the District to require the proposer to submit evidence of qualification prior to the award of the contract. On July 26, 2010, e-mails were sent by the District to Ameritas and United Concordia Dental Care, stating: On the DPO/Indemnity Plan Questionnaire, Question 11 asked the following: "In the chart below, provide information regarding DPO/Indemnity contracted rates and employee cost sharing for SDLC." There were two columns for your company to complete--"DPO Allowable" and "Indemnity Allowable." You did not provide amounts for the "DPO Allowable" column. This information is critical to our evaluation process. Could you please supply the DPO Allowable rates as soon as possible, but no later than 2:00 PM, Wednesday, July 28th? United Concordia Dental Care submitted the omitted DPO Allowable rates on July 27, 2010. Ameritas submitted the omitted information on July 28, 2010. The evaluation committee reviewed and scored the proposals. Based on their evaluation, Humana, Delta Dental, and CIGNA were determined to be the top three proposers to be shortlisted. On August 4, 2010, the District sent an e-mail to Humana, Delta Dental, and CIGNA, requesting that they respond to a number of clarification questions. Additionally, the School Board stated: SDLC would be interested in offering a low option DPO in lieu of a DHMO product with premiums similar to its current DHMO. What type of a DPO plan could you design with monthly premiums of $20-22 Employee, $30-35 Employee/Spouse, $30-35 Employee/Child; $50-60 Employee/Family. Provider [sic] details for each level of coverage in the table below. Deductable per Individual/Family Annual Maximum Benefit Diagnostic/Preventive Benefit Basic Benefit/Level II Major Benefit/Level III Orthodontic Benefit/Level IV Other Benefits None of the other proposers were asked to propose a separate low-option DPO plan. Section 2.1 of the RFP provided that proposers could submit a DHMO option or a DPO/Indemnity option or both options. Although some of the proposers did submit Low-Option DPO/Indemnity plans, none of the top three proposers submitted such options. CIGNA, Delta Dental, and Humana submitted a Low-Option/Indemnity plan in response to the District's e-mail of August 4, 2010. The District interviewed each of the top three proposers. On August 27, 2010, Ginny Monroe, the procurement agent for the District, sent an e-mail to Humana, which stated: Congratulations, as the top ranked proposer the SDLC wishes to enter into negotiations. Attached please find a scanned negotiation letter. Please sign and return this letter via fax or email no later than Monday, August 30, 2010 at 2:00 pm. On August 30, 2010, Dr. Gregory Adkins (Dr. Adkins), who is the chief human resources officer for the District, asked Ms. Strong to provide several bullet points highlighting the reasons Humana was selected as the dental provider. On September 7, 2010, Dr. Browder requested Ms. Strong to prepare a summary of the reasons the evaluation committee had chosen Humana. Ms. Strong prepared the summary and had it delivered to Dr. Browder on September 8, 2010. On September 9, 2010, Dr. Adkins requested Ms. Strong to prepare a side-by-side comparison of the top three proposers. She did as requested and took the comparison analysis to Dr. Adkins, who discussed them with Dr. Browder. On September 9, 2010, Delta Dental sent a letter to Dr. Browder, stating that Delta Dental had received the dental carrier finalist information. Delta Dental proceeded to address each of the issues set forth in the comparison prepared by Ms. Strong. The letter by Delta Dental was in violation of the RFP prohibitions concerning lobbying. On September 10, 2010, the Lee County School District posted an intended award to Humana, stating: "Based on the review of the individual scoring sheets by the evaluation committee, the Superintendent will recommend to The School Board of Lee County that Humana Dental Insurance Company/Comp Benefits Company be accepted as the awarded vendor having submitted the overall best responsive proposal and that purchase order(s) be forwarded to same." On September 10, 2010, Dr. Adkins sent an e-mail to Ms. Strong, questioning whether Humana's premiums were truly lower than Delta's. Ms. Strong told Dr. Adkins that she would prepare a premium analysis. She forwarded the premium analysis to Dr. Adkins on September 13, 2010. On September 13, 2010, Dr. Adkins met with Dr. Browder and others concerning the intended award. Dr. Browder wanted to reject all bids based on concerns by School Board members about the premiums and lack of clarity of the benefits offered and instructed Greta Campbell (Ms. Campbell), an employee in the procurement department, to post a rejection of all bids. Dr. Adkins asked Dr. Browder to wait on the rejection of all bids until Dr. Adkins had time to discuss the matter with Ms. Strong. At that time, the only explanation that Dr. Adkins gave Ms. Strong was that some School Board members were concerned about the premiums and benefits. Dr. Browder requested the legal staff for the District to review the procurement process before a rejection of all bids was posted. Heather Hawkins (Ms. Hawkins) reviewed the procurement and found that there were some procedural errors that had occurred. On September 23, 2010, Dr. Browder, Dr. Adkins, Ms. Hawkins, Ms. Campbell, Keith Martin, and Dr. Lawrence D. Tihen, who was to become the interim superintendent after Dr. Browder's departure, met to discuss Ms. Hawkins' findings. The procedural errors discussed concerned the District allowing proposers to supply missing information after their proposals had been submitted; the District making requests for clarifications; and the District requesting that the top three proposers submit low-option DPO plans. On September 24, 2010, the District posted a Notice of Intent to Reject All Proposals, which stated: Please be advised that the Notice of Intention to Award issued September 10 in the above-referenced matter is hereby rescinded. The Superintendent will recommend to the School Board of Lee County at its October 19th meeting that all proposals received in the above-referenced solicitation be rejected due to a procedural error.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the rejection of all proposals was not fraudulent, illegal, dishonest, or arbitrary and dismissing Humana's protest. DONE AND ENTERED this 2nd day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of December, 2010.
