The Issue Whether Petitioner is entitled to a refund from the State of Florida Group Health Self Insurance Plan of pre-tax supplemental insurance premiums in the amount of $47.46 or $47.45 a month that were deducted from his pay for the 2007 and 2008 insurance plan years.
Findings Of Fact Petitioner, Detrick Murray ("Petitioner" or "Mr. Murray") was, at all times relevant to this proceeding, employed by the Florida Department of Corrections. As a state employee, he was given the option to participate in a pre-tax supplemental accident/disability insurance plan. Benefits, including insurance plans, are administered by a private contractor, Convergys, through a project called "People First," operated on behalf of Respondent, Department of Management Services, Division of State Group Insurance ("Respondent or the Division"). During the 2005 open enrollment period for the 2006 plan year, Mr. Murray elected to participate in a state- sponsored supplemental/accidental policy offered by Colonial Insurance Company ("Colonial"). The reverse side of the enrollment provided the following information and instructions: The enrollment form must be used to enroll in or change coverages. No changes will be accepted by e-mail or letter. Enrolling in a supplemental insurance plan, or changing options, does not automatically stop other coverages you currently have. To stop an existing coverage, you must place an "S" in the box provided for that Plan on the front of this form (Part 1). Only complete Part 2 on the front of this form if you wish to stop plans currently not offered. The Supplemental Enrollment Form must be submitted to the People First Service Center. Enrollment changes will not occur if forms and/or applications and the Supplemental Company Application are submitted directly to the supplemental insurance company. If you cancel or do not enroll in supplemental insurance, you will not be able to enroll again until the next annual open enrollment period, unless you experience a Qualifying Status Change. Supplemental premiums are deducted on a pre- tax basis. It is your responsibility to ensure that your enrollment selections are in effect. Check your payroll warrants to ensure that your deductions properly reflect your selections. Contact the People First Service Center immediately if these deductions are not correct. I understand my enrollment and/or changes will be effective the first of the month following a full payroll deduction. I also understand my elections are IRREVOCABLE until the next annual open enrollment period, unless I have a Qualifying Status Change as defined by the Federal Internal Revenue Code and/or the Florida Administrative Code. I understand that I must request such changes within thirty-one (31) calendar days of the Qualifying Status Change. The open enrollment period for the next year, the 2007 plan year, began on September 19, 2006, and ended on October 18, 2006. On October 14, 2006, Mr. Murray notified Colonial that he wanted to cancel the supplemental insurance for the 2007 plan year. He used a Colonial Request for Services form and sent it to the Colonial Processing Center in Columbia, South Carolina. In a letter dated February 14, 2007, Colonial acknowledged receiving Mr. Murray's request to cancel the insurance during the 2006 enrollment period, and informed him of its receipt of an "overpayment" of $47.46 monthly beginning January 1, 2007. Colonial directed Mr. Murray to contact his personnel officer "which will then work through the Division to issue your refund." After the open enrollment period ended, Mr. Murray had also contacted People First on November 14, 2006, and gave notice of his attempt to cancel with Colonial. He was informed that Colonial had not informed People First of the cancellation. Mr. Murray contacted People First again on January 29, 2007, questioning the continued payroll deductions and requesting a refund, as Colonial had suggested. He was told that he would have to cancel with People First during the open enrollment period, but he could send a letter of appeal to try to get a refund of premiums and try to cancel sooner. Despite repeated contacts, requests for refunds, and appeals to People First during 2007, Mr. Murray continued to have premiums for supplemental insurance deducted from his pay check. Ultimately, the Division denied his appeal. Although Mr. Murray was trying to get a refund for 2007 payroll deductions, he again failed to notify People First to cancel the insurance during the open enrollment period between September 17, 2007, and October 19, 2007, for the 2008 plan year. There is no evidence that Mr. Murray had a qualifying status change, as required by federal and state law, that would have permitted him to cancel the insurance at any time other than during open enrollment periods for the 2007 and 2008 plan years. The enrollment period for the 2009 plan year began on September 22, 2008, and ended on October 17, 2008. On September 24, 2008, Mr. Murray cancelled the supplemental insurance for the 2009 plan year by making a telephone call to a People First representative. In a late-filed exhibit produced by a manager for Convergys at the request of Petitioner, the Division showed that payments were made to Colonial to insure Mr. Murray through November 24, 2008. Sandi Wade, the Division's benefits administrator, noted that Colonial should not have canceled Mr. Murray's insurance policy. Colonial had no authority to send the letter of February 14, 2007, incorrectly telling Mr. Murray he was entitled to a refund. Ms. Wade's observations prompted Mr. Murray to question what, if any, remedies he might have with regard to Colonial's error. That issue is not and cannot be considered in this proceeding. In the absence of evidence that the Division or its agents were notified to cancel the supplemental insurance during open enrollment periods for 2007 and 2008, or based on a qualifying status change, Petitioner's request for a refund of premiums must be denied.
Recommendation Based on the foregoing, it is recommended that the Department of Management Services, Division of State Group Insurnace, enter a final order denying Petitioner, Detrick Murray, a refund of his accident/disability insurance coverage premiums paid in 2007 and 2008. DONE AND ENTERED this 12th day of May, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2010. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Detrick Murray 4370 Northwest 187th Street Miami, Florida 33055 John Brenneis, General Counsel Division of State Group Insurance Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether or not Petitioner's application for examination as a general lines agent should be approved.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: On or about September 2, 1989, Petitioner, Kimberly L. Strayer, formerly known as Kimberly Lindsay, filed an application for examination as a general lines agent with Respondent, Department of Insurance. Since January 1988, Petitioner has been the sole owner and president of Central Florida Insurance Agency (Central). On or about December 28, 1989, Respondent informed Petitioner, by letter, that her application for examination as a general lines agent was denied for the following reasons: Petitioner operated Central Florida Insurance Agency without a licensed general lines agent in the full-time active charge of that agency from January 1, 1988 through August 31, 1988. During January 1988 Petitioner accepted applications and down payments from the following insureds: Robert Smallwood, Annelle Jones, Mickey Lawson, Donald Johnson, Thomas Jones, Manning O'Callahan and Christopher Stevens. Petitioner issued a binder and an automobile identification card for each insured indicating that coverage was bound with State Farm Mutual Insurance Company, as servicing carrier for the Florida Joint Underwriting Association (FJUA). At the time Petitioner had no authority to accept either applications or premiums on behalf of State Farm. Petitioner failed to forward such applications and premiums to the insurer until April 12, 1988. During January 1988, Petitioner accepted an application and premium payment of $274.00 from Tammy Clay. Petitioner issued a binder indicating that coverage was bound with State Farm and Union American Insurance Companies. Petitioner failed to forward either the application or the premium payment to any insurer. Petitioner issued a fictitious policy number to Ms. Clay and after nearly four months, submitted a money order to State Farm payable to Tammy Clay, on or about May 1989. At the hearing, Petitioner admitted that she did not have a licensed general lines agent in full-time active charge of her agency; that she accepted applications and premium payments from the above-named insureds for auto insurance to be bound with State Farm Mutual Insurance Company and that she accepted an application for premium payment for automobile insurance from Tammy Clay in the amount of $274.00 for coverage to be bound by State Farm Mutual Insurance Company. Petitioner was first employed in the insurance sales industry during the summer of 1987. At the time, she was only seventeen years old and had completed the eleventh grade. Petitioner's first employment in the insurance industry was with Friendly Auto Insurance (Friendly) which had several offices throughout Polk County, Florida. Friendly was owned by Petitioner's now husband, Larry Lindsay when she was hired. Petitioner formed Central during late 1987 and began operating Central on or about January 1, 1988. Petitioner received her supervision and training while employed with Friendly, primarily through on the job experiences. During late 1987, Petitioner's husband encountered problems with one of his business partners which resulted in strained relations. The resultant strained relations prompted Petitioner to organize Central. Central purchased several of Friendly's agencies of which her now husband had an interest, with Petitioner paying a nominal amount for the "book of business" that Friendly had generated. When Central commenced operations during January of 1988, Bob Seese was the licensed insurance agent who was authorized under the rules of the FJUA to accept applications and bind coverage through one of the FJUA servicing carriers, State Farm. Friendly and its successor, Central, generated a substantial volume of so-called high risk auto insurance business for drivers who could not obtain insurance through the regular market. Bob Seese had been associated with and served as the licensed agent for the Friendly agency in Lakes Wales which Central purchased in January 1988. At the time Petitioner commenced operating Central, she hired Bob Seese as the licensed general lines agent. She considered that Central was authorized to accept applications and continue to bind FJUA insurance coverage through State Farm. Petitioner forwarded all of the FJUA insurance applications which were bound by Bob Seese to State Farm within a period ranging from one week to approximately one month. State Farm refused to accept the applications submitted by Petitioner based on its contention that initially, Bob Seese was not authorized to bind coverage through Central, as he had not transferred his license to Central and Seese could only operate out of the Friendly agency of Lake Wales. 1/ Bob Seese was formally authorized by State Farm to conduct business through Central during February 1988. As a result of that authorization, all of the above-named insureds obtained insurance and none of the insureds suffered any monetary loss as a result of Seese's belated authorization. All of the premium payments that Petitioner received were, in time, forwarded to the respective carriers. Petitioner properly gave new insureds binder numbers which were serially dispensed in the order that premium payments were received. During January 1988, Petitioner accepted an application and premium payment for auto insurance from Tammy Clay for coverage to be bound by State Farm. Petitioner submitted Clay's application and premium payment to State Farm and it was returned on one occasion based on the fact that a facsimile stamp was used by the purported licensed agent (Seese). Petitioner resubmitted it and State Farm again returned it based on State Farm's contention that Seese was not authorized to conduct business through Central. Petitioner has now completed the required formal educational courses to demonstrate her eligibility to sit for the general lines agent's examination. Petitioner is now knowledgeable about insurance matters and is aware of the proper procedures for operating as a general lines agent. When Petitioner formed Central, she had less than one year's experience in the insurance business and was ineligible to sit for the general lines agent exam as she was not of majority age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order granting Petitioner's application for examination as a general lines insurance agent. DONE and ENTERED this 31st day of October, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of October, 1990.
The Issue The issue is whether Brian T. Kidd is entitled to additional reimbursement of medical care expenses under the State of Florida Employees' Group Insurance Plan.
Findings Of Fact Mr. Kidd is a state employee and has been diagnosed as having Amyotrophic Lateral Sclerosis (ALS), commonly known as Lou Gehrig's Disease. When the disease was diagnosed, Mr. Kidd was covered by Capital Health Plan (CHP). CHP refused to cover the expenses of testing and treatment at the ALS clinic in Houston, Texas. During the October, 1989, open enrollment period, Mr. Kidd opted to change his medical insurance coverage to the State of Florida Employees' Group Insurance Plan (the State Plan). He made the change hoping to get coverage for the testing and treatment at the ALS clinic in Texas. The effective date of his coverage under the State Plan was January 1, 1990. Prior to leaving for the ALS clinic, Mr. Kidd talked to Lee Peacock and William Seaton in the Department's Division of State Employee Insurance. Mr. Kidd was told that the only way to determine the extent of coverage for the testing and treatment was to get prior approval from the Department's prior approval program. Mr. Kidd did not file a claim under the prior approval program. Instead, on January 29, 1990, Mr. Kidd sent a letter to William Seaton, together with a copy of a letter from Bernard. M. Patten, M.D., a doctor with the Baylor College of Medicine in Houston, Texas. Mr. Kidd's letter advises that he wants a predetermination regarding tests he is having from January 31 to February 8, 1990. Knowing that his letter requesting a predetermination could not have even been received by the Department, Mr. Kidd left for Texas and the scheduled tests and treatment. Mr. Peacock responded to the January 29, 1990, letter on February 13, 1990, advising that prior approval could not be given because the letter contained inadequate information and a prior approval claim had not been filed. Mr. Kidd did receive medical testing and treatment from January 31 to February 8, 1990. The State Plan paid approximately $8,400 of the total bills. Mr. Kidd believes that the State Plan should have paid more. Mr. Kidd offered no credible evidence to show entitlement to greater payment of benefits. While he did place numerous benefit payment schedule forms into evidence, he did not identify a single unpaid charge and show that it should have been paid. Further, his testimony in this regard is not entitled to great weight because some of his statements are plainly inaccurate. For example, Mr. Kidd identified a benefit payment schedule bearing a number of 00731581300 in which payment for $85.00 was excluded. He claimed that this charge should have been paid. On cross-examination, Mr. Kidd had to acknowledge that this charge was in fact paid on benefit payment schedule number 01271871300 except for $20.00 which was an ineligible expense. Mr. Kidd was unclear on and unable to identify those charges which had not been paid and the reasons he believed he was entitled to the benefits. The State Benefit Document limits payments for hospital services for non-PPC services at 80% of the hospital's average rate, not to exceed $152.00 per day. The Plan also requires a deductible of $200.00 per hospital admission. For example in this case Mr. Kidd had 9 days of hospitalization and was charged $230.00 per day. The eligible expenses were only $190.00 per day or $1710 leaving a total of $360 of ineligible expenses. Further, The Plan pays only 80% of eligible expenses (.80 x 1710=1368), leaving $342 or 20% as the patient's responsibility. Adding the ineligible expenses and the patient's responsibility leaves a total of $702 of the hospital room and board not paid under the Plan. The amount paid was correct. While there are other examples such as this where the Plan clearly paid the proper amount, there is no evidence to show one single example where the Plan did not pay all that was owed. All of Mr. Kidd's claims were properly paid under the Plan in accordance with the Benefit Document.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Brian T. Kidd's request for additional reimbursement and dismissing Mr. Kidd's petition for relief. DONE and ENTERED this 19th day of October, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Brian T. Kidd The proposed findings of fact submitted by Petitioner are in a format which combines findings of fact, conclusions of law and argument. The proposed findings of fact cannot be separated in such a way as to allow specific rulings on each proposed finding of fact. Hence the only ruling that can be made is that the proposed findings of fact are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-7) and 9(12). Proposed finding of fact 6 is subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 7 and 8 are unnecessary. COPIES FURNISHED: Brian T. Kidd Route 3, Box 4381 Quincy, Florida 32351 Augustus D. Aikens General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether or not Petitioners are entitled to add an above-the-age-limits child, who became handicapped after their initial enrollment in the state insurance program, as an eligible dependent.
Findings Of Fact Petitioners are Robin A.C. Fearn, SSN 269-36-8341, an employee at the Marion County Correctional Institution since May 23, 1986, and his wife, Mary Fearn, SSN 273-36-8629, an employee of the University of Florida since September 5, 1978. Effective June 1, 1986, Petitioners were enrolled in the Spouse Program under the State of Florida's Employees' Group Health Self Insurance Plan. Participants in the Spouse Program are entitled to family coverage for themselves and any eligible dependents. Petitioners are the parents of a son, Lee A. Fearn, SSN 264-39-0713 who was born on February 27, 1961. At the time of Petitioners' initial enrollment in the health plan on June 1, 1986, Lee was 25 years of age and had exceeded the maximum dependent age limit of 23 years of age provided under the plan. Lee has not, at any time, been covered as a dependent under the State of Florida Employees' Group Health Insurance Plan. Shortly after his 29th birthday, Lee Fearn was rendered disabled from injuries received in an automobile accident in March 1990. Since that accident, Lee has been dependent on Petitioners for support. The Federal Social Security Administration has accepted him as dependent on his parents, and Respondent does not dispute that Lee is "incapable of self-sustaining employment by reason of such mental or physical handicap and chiefly dependent upon the employee" as that term is used in Rules 60P-1.003(4)(c) and (d) F.A.C. [formerly Rule 22K- 1.103(4)(c) and (d) F.A.C.] Petitioners attempted to secure health insurance coverage for Lee during the open enrollment periods in 1991 and 1992 by listing Lee as an eligible dependent in the space provided for adding dependents on the bottom half of their annual open enrollment form. As a part of its insurance program, the Respondent permits State employees to enroll in the State of Florida Employees' Group Health Self Insurance Plan (Plan) within 31 days of employment or during an annual open enrollment period as described in its Rules 60P-2.002 and 60P-2.003 F.A.C. The annual open enrollment form is titled, "Annual Benefit Selection Form." All state employees are asked to complete and return this form during each annual open enrollment period. It provides, in pertinent parts, as follows: "You must make a decision on each benefit. . . . Add only those dependents not currently covered by your health insurance. Eligible dependents are those outlined in Rule 22K-1 F.A.C." (Emphasis supplied) Employees wishing to make changes in their current health insurance are permitted to do so during the open enrollment period by indicating those changes on the Annual Benefit Selection Form. No health examination or declarations, even of a preexisting condition, are required during this annual open enrollment period. Employees are given five options regarding their health insurance on the Annual Benefits Election Form: Make no changes; Cancel Enroll Change from HMO Plan to State Self-Insured Plan or vice versa; and Change from individual coverage to family coverage or vice versa. Petitioners separately completed their Annual Benefits Selection Forms during the 1992 open enrollment period by indicating they did not wish to make any changes in their health insurance coverage, that is, family PPC coverage. At the bottom of the Annual Benefits Selection Form, Petitioners added Lee as a dependent and authorized payroll deductions and stated "I understand my enrollment or coverage changes will be effective January 1, 1993 . . ." (Emphasis supplied) Petitioners claim they submitted a similar form in 1991 and never received notice from Respondent of the acceptance or denial of their 1991 open enrollment request to add Lee as their dependent. Petitioners did receive back a denial in the form of two memos via the University of Florida personnel department, which employs Mrs. Fearn, for their 1992 open enrollment request. Verla Lawson, Department of Management Services, [formerly Department of General Services] Division of State Employees Insurance, State Enrollment Administrator, testified as to how the open enrollment plan and applicable rules have been administered. She has been employed with the agency since 1986, but her involvement with the pertinent issues appears to have begun only with her assuming her present position in 1991. Ms. Lawson testified that to accomplish Petitioners' goal of adding Lee to their coverage as a dependent they "should have" checked the box for "I wish to change" at the top of the form, filled out the dependent information at the bottom of the form and then made out another form for PPC coverage. From this portion of Ms. Lawson's testimony, it is inferred that the annual open enrollment form a/k/a the Annual Benefits Selection Form also constitutes the "Health Care Option Selection Form" referenced in Rule 60P-2.002 F.A.C. Ms. Lawson also testified that even if Petitioners had made out both forms required, the agency would have denied coverage of Lee. According to Ms. Lawson, employee participation in the Plan is considered continuous unless an employee elects to discontinue participation or to change to an HMO. She stated that although employees are asked to return open enrollment Annual Benefit Selection Forms each year for administrative purposes, they are not required to re-enroll in the Plan during each open enrollment period. If an employee indicates no changes on an Annual Benefit Selection Form, that form is not transmitted by an employee's local personnel office to the Department of Management Services in Tallahassee. Ms. Lawson conjectured that is what happened to Petitioners' 1991 attempts to add Lee to their coverage. However, Ms. Lawson consistently referred to the Annual Benefit Selection Form as "the enrollment form" for the Plan, and Mr. Fearn testified credibly that he was advised by his supervisor that his coverage would be terminated if he did not turn in his form timely. The language on the form reflects the same compulsory instruction. (See FOF 7). It is accepted, pursuant to Mr. Fearn's testimony and within the parameters of Section 120.58(1)(a) F.S.. that Mrs. Fearn was told that submission of the annual open enrollment form was necessary to prevent termination of her coverage. Also, according to Ms. Lawson, the agency interprets its rules to permit employees to add additional eligible dependents within 31 days of the acquisition of that dependent or during the open enrollment period, and the Plan has been administered to permit above-the-age-limit handicapped children to be added only during the employee's or retiree's initial enrollment in the Plan. The agency interprets Rules 60P-2.001 and 60P-2.002 F.A.C. and Section 110.123(2)(b) F.S. to mean that only employees, retirees or spouses of deceased employees may apply for "enrollment" in the Plan, that eligible dependents merely "participate" in the Plan under an existing family coverage when added as dependents, and that consequently, dependents do not independently "enroll" in the Plan. The agency therefore decided that Petitioners' 1992 attempts to add Lee Fearn to his parents' existing family coverage as a dependent did not constitute an "enrollment" which by its own terms created the opportunity to enroll an above-the-age-limits handicapped child. Because under this interpretation Lee Fearn was not an eligible dependent, the agency felt he could not have been added to Petitioners' coverage. Ms. Lawson was not familiar with any case with facts similar to this one. According to Ms. Lawson, if Petitioners had been first employed in 1992 and enrolled in the Plan within 31 days of that first employment, their handicapped over-age son could have been covered, and if they had been employed in 1986 but waited until 1992 to enroll for the first time in the Plan, their handicapped over-age son could have been enrolled at that time. Ms. Lawson specifically stated she could not say how the agency would proceed if the Petitioners herein dropped their coverage for one year and then tried to enroll both parent employees and the over-age handicapped child during a new employee 31 day grace period or an annual open enrollment. Ms. Lawson was not clear on what the agency might do if one or both of Lee's parents accepted employment elsewhere and later returned to government service and applied for the Plan, except that state retirement rules possibly would govern the length of a permissible break in service. Ms. Lawson was not asked, and therefore the record is barren of any explanation of how, the agency would interpret its rules if one parent were employed without covering Lee and the other were later employed and wished to cover him as an over-age dependent handicapped child within the second parent's first 31 days of initial employment. However, the agency maintained that there is no provision in the Plan allowing an employee who is already enrolled in the Plan to add a handicapped over-age child and that its rules have never been interpreted to permit the adding of such a dependent at annual open enrollment. Rule 60P-1.003(4)(c) F.A.C., as interpreted by the agency, applies to a handicapped dependent child already in the Plan who then turns nineteen. Rule 60P-1.003(4)(d) F.A.C., as interpreted by the agency, applies only to a handicapped dependent child not in the Plan at the time of the parent- employee(s) initial enrollment. The word "enroll" as used in Rule 60P-1.003(13) F.A.C. is interpreted by the agency to mean "change or transfer plans" under the program, if an employee is already enrolled in any state insurance program at all (PPC Plan or HMO). The agency interprets the same word to mean "enroll" if the employee has never before been enrolled in any state insurance program. Under the provisions of Section 110.123(5), F.S. the Secretary of the Department of Management Services is given the responsibility for administering the state group insurance program. Inherent in that responsibility, but subject to prior legislative approval, is the authority to determine benefits and the contributions required therefor. Such determinations, whether for a contracted plan or a self-insurance plan, do not constitute "rules" within the meaning of Section 120.52(16) or "orders" within the meaning of Sections 120.52(11) F.S. The purpose of this exception to the Administrative Procedure Act is to afford the Department flexibility to make benefit changes or clarifications consistent with legislative approval. Respondent modified its January 1, 1993 edition of the Benefit Document to reinforce its interpretation that above-age-limits handicapped children could only be added during an initial enrollment, but this information was not provided to employee consumers until after the instant case was already in progress. There was no actuarial or expert insurance evidence to show that the legislature by its statutes or the agency by its rules had made a conscious and reasonable decision to treat the over-age handicapped children of longtime employees differently than the over-age handicapped children of brand-new employees or employees who have had a significant interruption in government service or that there is any reason or purpose for such a distinction.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered enrolling Lee Allen Fearn SSN 264-39-0713 as an eligible dependent of Robin A.C. Fearn and Mary E. Fearn in the State Health Plan effective January 1, 1993 and that all eligible claims for his medical expenses after January 1, 1993 be paid. RECOMMENDED this 1st day of April, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1994. APPENDIX TO RECOMMENDED ORDER 93-5859 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioners' PFOF: Petitioners' proposed recommended order does not comply with the rules of the Division of Administrative Hearings as to designating proposed findings of fact and conclusions of law separately or numbering same. It appears to present only conclusions of law or a final recommendation. It is rejected as proposed findings of fact. As proposed conclusions of law and legal argument it has been covered but not necessarily adopted in the recommended order's conclusions of law. Respondent's PFOF: 1-2 Accepted. 3 Accepted in part and rejected in part as legal argument or mere recitation of one person's testimony. Covered in FOF 17. 4-5 Accepted. 6-10 Rejected as legal argument or mere recitation of testimony, covered in FOF 17-25. COPIES FURNISHED: Robin A.C. & Mary E. Fearn 3241 NW 41st Avenue Gainesville, FL 32605 Augustus D. Aikens, Jr., Esquire DMS/Division of State Employees Insurance 2002 Old St. Augustine Road B-12 Tallahassee, FL 32301-4876 William H. Lindner, Secretary Department of Management Services Knight Building Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Sylvan Strickland General Counsel Department of Management Services Knight Building Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue Whether Petitioner’s disabled dependent child is entitled to have his dental benefits continued after he has reached the age of 26.
Findings Of Fact Respondent contracts with Humana/CompBenefits Company to provide dental benefits to employees of the State of Florida. In 2014, Petitioner, his spouse, and his dependent child were members of Humana/CompBenefits Company’s Network Plus Dental Plan (Humana Plan). The Humana Plan provides coverage for a subscriber’s dependent child through the calendar year in which the child reaches the maximum age of attainment. Respondent handles eligibility issues regarding the Humana Plan and allows dependent child coverage to continue through the end of the year in which the dependent turns 26 years of age (the maximum age of attainment). The dental coverage for Petitioner’s dependent terminated on January 1, 2015, due to the fact that the dependent turned 26 years of age in 2014. According to the Humana Plan, dental coverage for a dependent older than 26 years of age may, under certain circumstances, continue if the dependent is disabled. In order for dependent coverage to continue, proof of the dependent’s disability must be submitted within 31 days of the dependent’s maximum age of attainment, or by the end of the year in which the dependent turns 26 years of age. Petitioner did not submit any documentation regarding his dependent’s disability until August 2015, which was approximately 10 months after his child’s 26th birthday. Petitioner claims that he was unaware of the fact that his dependent’s coverage terminated on January 1, 2015, and if he had known of the termination, he would have timely provided to Respondent documentation demonstrating his son’s disability. Employee health insurance benefits are administered by a private contractor, Northgate/Arinso, through an online system called People First. The People First computer system automatically identifies which dependents will be ineligible for coverage during the upcoming policy year and mails notifications to members advising them that their benefits will be changing. From October through November 2014, Northgate/Arinso sent Petitioner the following three notifications that his dependent child would not be enrolled in dental insurance beginning January 1, 2015: the annual enrollment benefits statement; a COBRA package; and an annual enrollment confirmation. The annual enrollment benefits statement is mailed before Open Enrollment and informs members what benefits they will have beginning January 1 of the upcoming year should they not make any benefit changes during open enrollment. Northgate/Arinso mailed the annual enrollment benefits statement to Petitioner on October 4, 2014. A copy of the actual notice mailed to Petitioner was not produced, and Petitioner claimed he never received the annual enrollment benefits statement. Respondent offered no proof to the contrary. By correspondence dated October 3, 2014, and mailed to Petitioner at his address of record on November 8, 2014, Respondent provided Petitioner with his annual enrollment confirmation. The annual enrollment confirmation notice shows that only Petitioner’s wife, and not his dependent child, would be enrolled in dental coverage beginning January 1, 2015. On or about October 6, 2014, Northgate/Arinso also provided written notification to Petitioner of his rights to continue his dependent’s dental coverage pursuant to the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The COBRA package explains the process and costs associated with Petitioner’s dependent child continuing dental coverage through this option, and also informed Petitioner that his son’s dental benefits would terminate on January 1, 2015. Petitioner did not elect COBRA coverage for his dependent. The COBRA package was additional notice to Petitioner that there was a change happening to his existing dependent dental coverage. The People First system tracks all interaction with members, including notes of telephone conversations with members, any documents submitted by the member, and mail that has been returned as undeliverable. When mail is returned as undeliverable, an entry is made in the People First notes. Neither the annual enrollment benefits statement, nor the annual enrollment confirmation statement or the COBRA package, were returned as undeliverable. Respondent allows members to enroll in insurance benefits within 31 days of a QSC event and during open enrollment. At the time Petitioner sought to enroll his dependent child in August 2015, Petitioner did not experience a QSC event that would allow enrollment in the Humana Plan. Furthermore, because Petitioner’s dependent reached the age of attainment in 2014, dependent coverage was no longer available during periods of open enrollment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner, Angel Ortiz's, request to have his dependent added to Petitioner’s dental plan. DONE AND ENTERED this 9th day of May, 2016, 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 9th day of May, 2016.
Findings Of Fact The Parties The School Board of Broward County, Florida is responsible for, among many other things, the purchase of group health insurance for school system employees. The Broward County School System is the second largest in Florida and the seventh largest in the United States with 21,033 eligible employees. PCA, HIP, and Humana are large managed care companies providing a wide range of health care services to the public. Each proposer submitted proposals in response to the RFP. PCA's proposal was subdivided into PCA Basic (which was designed to generally match the current benefit plan) and PCA Enhanced (which was designed to exceed the current benefit plan). HIP and Humana are interested parties, entitled to intervene, because they were jointly awarded the health insurance contract by the Board, subject to PCA's protest. The Insurance Consultant The Board retained the services of Siver Insurance Management Consultants ("Siver"), an independent insurance management consulting firm, to aid it and the Insurance Committee with this RFP and other matters. Siver is a group of professionals who provide advice and counsel to both public and private sector clients. The majority of its public sector work involves assisting governmental entities in purchasing their insurance programs. Siver was not retained to score the proposals or to provide a recommendation to the Insurance Committee or the School Board as to which proposal should be chosen. At one of the early Insurance Committee meetings, Siver made a presentation entitled "Insurance 101" to inform the Committee members about group health insurance and to advise them about the criteria that could be used in the evaluation process. The RFP On April 11, 1995 the Board issued an RFP to solicit bids for its group health program, covering eligible employees of the Broward County School System. It sought proposals on one or more of the following managed care organizations, with each organization to be evaluated on its own merit (standing alone): Health Maintenance Organization (HMO) Point-of-Service Health Maintenance Organization (POSHMO) Preferred Provider Organization (PPO) The contract was to begin January 1, 1996 and run through January 1, 2000 (4 years). The RFP set forth, in general terms, the criteria that would be used to evaluate the proposals. Under the category "Evaluation Criteria and Selection Factors", the RFP provided that out of a total of 100 points, 0 to 45 points would be allocated to projected costs and rate guarantees, 0 to 45 points would be allocated based upon the extent to which the proposers were "willing and able to provide products and services as specified in the RFP", and 0 to 10 points would be allocated for the extent to which minorities and women were to participate in the providing of services. The criteria in the RFP were further broken down for the "willing and able" and M/WBE categories. In the willing and able category (45 points maximum) the major factors which may be considered were stated to be: The degree of relevant experience of the proposer with respect to comparable clients in Florida; the degree to which the proposer matched current plan provisions, coverages and services required by the RFP; the degree to which the proposer exceeded the current plan provisions, coverages, and services required; and the capability of the network to provide proposed care and services. The M/WBE category (10 points maximum) was further broken down as follows: (a) The degree to which minorities and women participate in the services to be performed and (b) the estimated amount of remuneration to qualified M/WBE's. The M/WBE criteria also provided: A greater amount of evaluation credit will be given to Proposers with a Broward County office(s) whose employee composition by ethnicity and gender reflects the Broward County population as defined by the 1990 census. Less evaluation credit will be given to Proposers with administrative office(s) located outside Broward County and/or whose office(s) do not have the employee composition by ethnicity and gender that reflects the Broward County population as defined by the 1990 census. The RFP specifically provided that Proposers could protest the contents of the RFP within 72 hours of its receipt. Neither PCA, nor any other Proposer, filed a protest to the contents of the RFP. Specifically, PCA did not protest the School Board's express intention, set forth in Section II, pages 7-8 of the RFP, to use the ratio of minority and women business enterprises as one of the criteria to rate the proposals. The Insurance Committee The RFP was developed by an Insurance Committee of fourteen individuals chosen by the Superintendent of the School Board. The Insurance Committee was charged with responsibility for evaluating the various proposals submitted in response to the RFP and making a recommendation to the Superintendent. The fourteen Insurance Committee members, and their respective backgrounds, were as follows: Ray Adkins Executive Director Confidential Office Personnel Association Walter Browne Executive Director Federation of Public Employees James Flynn Executive Director Support Services Personnel Association Anthony Gentile President, Broward County Teachers Association Judith Hunt Director of Risk Management and Safety for the Broward County School Board Nona L. Jones Local Businesswoman with background in risk management George Latimer Chief Finance Officer, Broward County School Board Lisa Maxwell Executive Director, Broward County Principals Association Robert Parks School Board Member Professor, Nova Southeastern University William Read Retired Businessman Former Benefits Manager, Chrysler Motor Corporation Mark S. Seigle Associate Superintendent for Personnel of the Broward County School Board Richard Thomas Director of Benefits, Broward County School Board Patricia Thompson President, Broward County Paraprofessional Association Lois Wexler School Board Member Of the 14 Insurance Committee members, two were School Board members, four were high ranking employees of the School Board, six were representatives of various employee unions and associations, and two were from the Broward business community. Each of the Insurance Committee members was furnished with, among other things, a copy of each of the proposals submitted in response to the RFP. These copies comprised several boxes full of documents. The Insurance Committee met a total of 11 times, beginning on February 17, 1995 and ending on July 17, 1995. Each meeting lasted between 3 and 10 hours. All the meetings of the Insurance Committee were publicly held "in the Sunshine." The Committee Evaluation Process The intention of the Insurance Committee in evaluating the proposals was to design evaluation criteria that afforded maximum discretion. There was no intention of making the Insurance Committee a "mathematical scoring machine." Based on consultations with Siver, and through its various meetings, the Insurance Committee adopted a scoring matrix to use in evaluating the various proposals. The scores were divided, as required by the RFP, into three categories: Ready, Willing and Able ("RWA"), Price, andMinority/Women Business Enterprise ("M/WBE"). The maximum scores for each category were as follows: Price 45 Ready and Willing 45 M/WBE 10 TOTAL: 100 Points The RWA category was subdivided into twelve separate criteria. The M/WBE category was subdivided into two separate criteria. The Insurance Committee thus ranked the proposals using a total of 14 separate criteria. Ultimately, the willing and able category was broken down into the following 12 "detailed categories": The number of products offered (1,2 or 3); whether the proposal matched current plan benefits or model; whether the proposal exceeds current benefits or model; allocation of premium dollars to medical services/claims; whether the proposal exceeded, equalled or provided less than the current level of mental health and substance abuse benefits; wellness program (level of services to be provided); credentials for managed care products; the extent to which the proposal exceeded, equalled, or provided less than the current provider of managed care services; the ratio of board certified providers to total network providers; comply with requested services set forth in the RFP; agree to service standards set forth in the RFP; and overall experience, specifically in Florida. The Insurance Committee then allocated maximum points to each of the 12 "detailed categories" according to their importance. The total of the points added up to 45. The Insurance Committee created a scoring grid containing the "detailed criteria", listing the detailed criteria and maximum points to be awarded in each category on the left side of the document, along with the 12 separate proposers across the page from left to right, leaving space to score each proposer in each criterion. In assigning points to the various criteria, it was the intention of the Insurance Committee members to allow for scoring anywhere along the range of assigned points. As noted in an early draft of the scoring matrix: "Maximum Suggested Points means that points may be awarded up to the stated maximum for each criteria." As a general rule, when establishing criteria for the evaluation of competing proposals for the furnishing of services it is best to try to avoid or minimize the use of subjective criteria. However, with regard to proposals of the type involved in this case, it is difficult to make meaningful comparisons on a purely objective basis and a certain amount of subjectivity is unavoidable. Honest mistakes are to be expected in a committee evaluation of competing proposals. Although a number of the criteria adopted by the Committe in this case were largely subjective, all of the criteria were relevant to a reasonable comparison of competing proposals. The consultant for the Board, Siver, prepared an analysis and comparative study of the various proposals to assist the Insurance Committee in scoring the proposals. The Proposal Analysis consisted of a breakdown and comparison of those features in each proposal which were relevant to each of the 12 RWA criteria established by the Insurance Committee. It listed each of the criteria individually and then outlined how each proposer complied or did not comply with the criteria. The analysis provided a quick reference for Insurance Committee members to use during their evaluation of the proposals, particularly given the number and size of the proposals. Each of the Insurance Committee members was provided a copy of the Siver analysis. Siver's Proposal Analysis was limited to the price/cost and "willing and able" categories. The Board utilized the resources of its own staff to assemble and compare information contained in the proposals with respect to the M/WBE category. Ultimately, the Committee decided to break down the M/WBE category into two sub-categories, to wit: workforce environment and M/WBE participation. It also decided that the workforce environment category would count for 3 points, and the M/WBE participation category for 7 total points. Shelia Dudley, the M/WBE coordinator for the Board supplied Insurance Committee members with several proposal analyses. The first was a document analyzing the percentage of minority and women employees in the proposers' regional, local, and corporate offices. The second was a proposal analysis of the extent to which the proposers committed to M/WBE participation. The document contained three columns. The first noted the firmness of any contracts with a qualified M/WBE and the dollar commitment, if provided; the second column set forth the form of minority contractor participation, viz: wellness program, printing, copying, etc., and the third column extracted general information from the proposals which might be useful to the analysis. The next document provided a breakdown of minorities/women for "physicians and others", and Dudley indicated that only Humana provided such information. PCA did supply a list of all minority physicians in Broward County with estimated capitation dollars, although without percentages. Lastly, Ms. Dudley provided Insurance Committee members with a document outlining possible evaluation considerations for the workforce environment criteria and the M/WBE participation criteria. There was no evidence in the record that Ms. Dudley's proposed evaluation considerations were ever adopted by the Committee. The July 13, 1995 Scoring The Insurance Committee met on July 13, 1995, to score the various proposals. Prior to the July 13, 1995, Committee meeting, all of the proposers had been given an opportunity to make an oral presentation, to hand out written presentation materials, and to participate in a question and answer session before the Committee voted. In addition, many of the Proposers, including PCA, had previously met individually with most of the Committee members for 20 or 30 minutes. The Committee members had also been lobbied by the various Proposers. Each member of the Insurance Committee scored the proposals for three different group medical products: an HMO product, a PPO product, and a Point of Service HMO product. The Insurance Committee elected not to independently score the price category, but rather to adopt Siver's price rankings based on a formula approved by the Committee. The July 17, 1995, Scoring The Insurance Committee reconvened on July 17, 1995, because Siver, at the request of some of the proposers, asked the Insurance Committee members to re-check some of their scores that in Siver's opinion were objectively verifiable and possibly inconsistent with the scores given by other Committee members. Siver offered its help, but left it to the individual Committee members to decide whether to rescore. Some did; some did not. (The final scores by each Insurance Committee member on each of the criteria are set forth in Petitioner Exhibit 18.) The Insurance Committee's final aggregate scores on HIP's HMO, Humana's HMO, and PCA's two separate HMOs (referred to as "PCA Basic" and "PCA Enhanced") were as follows: 7/17/95 Score HIP HUM PCA PCA Enh RWA 1 3.00 3.00 2.64 2.69 RWA 2 6.93 7.00 6.21 6.77 RWA 3 4.57 3.00 1.57 3.46 RWA 4 3.00 0.79 2.93 2.92 RWA 5 2.36 2.43 1.86 1.92 RWA 6 2.71 2.36 2.36 2.31 RWA 7 3.04 -0.36 0.29 0.23 RWA 8 1.43 2.21 0.93 0.85 RWA 9 2.64 0.14 0.07 0.08 RWA 10 2.57 2.50 1.93 2.00 RWA 11 2.43 2.50 1.79 1.85 RWA 12 2.75 3.57 1.57 1.54 RWA Subtotal 37.43 29.14 24.14 26.62 Cost 40.49 41.29 43.65 40.42 M/WBE 1 2.73 2.89 1.07 1.15 M/WBE 2 6.00 6.43 4.93 5.31 M/WBE Subtotal 8.73 9.32 6.00 6.46 HMO TOTALS: 86.65 79.75 73.79 73.50 The Insurance Committee posted the final scores for all Proposers and each of their products on July 24, 1995. HIP and Humana scored more total points than any other bidders on each of the three products. Accordingly, the Committee recommended that the School Board award the entire RFP, including the HMO contract, jointly to HIP and Humana. September 5, 1995 School Board Meeting On July 27, 1995, PCA filed a Notice of Protest with the Director of Purchasing of the School Board, as required by the RFP. On August 7, 1995, PCA filed a Formal Written Protest with the School Board. PCA's protest challenged the scoring on eight separate criteria: RWA Criteria Nos. 2, 3, 4, 5, 9, 10, and 11, and the M/WBE criteria. On September 5, 1995, the School Board met to consider PCA's protest. The School Board heard argument from PCA's attorney and from Siver. Mr. Marshall, on behalf of Siver, informed the School Board that, although some of the criteria were objectively verifiable, others had been scored on a subjective range. Following Siver's recommendation and its own evaluation of the criteria, the School Board agreed to give PCA the benefit of the doubt and to accept PCA's asserted revised scores on RWA Criteria Nos. 2, 4 and 9 because those criteria were arguably objectively verifiable. The School Board rejected PCA's arguments regarding the other criteria. Even with the School Board's willingness to give PCA the benefit of the doubt on the three criteria mentioned above, the Insurance Committee's July 17th rankings did not change. Consequently, the School Board denied PCA's protest. The revised aggregate scores agreed to by the parties for purposes of the final administrative hearing include the revised scores recommended by Siver and agreed to by the School Board on Criteria Nos. 2, 4, and 9. They are as follows: 9/5/95 Board Rescoring HUM PCA PCA Enh RWA 1 3.00 2.64 2.69 RWA 2 7.00 7.00 7.00 RWA 3 3.00 1.57 3.46 RWA 4 0.43 3.00 3.00 RWA 5 2.43 1.86 1.92 RWA 6 2.36 2.36 2.31 RWA 7 -0.36 0.29 0.23 RWA 8 2.21 0.93 0.85 RWA 9 0.00 0.00 0.00 RWA 10 2.50 1.93 2.00 RWA 11 2.50 1.79 1.85 RWA 12 3.57 1.57 1.54 RWA Subtotal 28.64 24.93 26.85 Cost 41.29 43.65 40.42 M/WBE 1 2.89 1.15 1.15 M/WBE 2 6.43 5.31 5.31 M/WBE Subtotal 9.32 6.46 6.46 HMO TOTALS: 79.25 75.04 73.73 43. On September 12, Hearing. 1995, PCA filed a Petition for Formal Administrative RWA Criterion # 3 Since neither HIP, Humana, nor PCA received a perfect "5" in the aggregate on Criterion #3, the Insurance Committee members obviously viewed the scoring on this criteria as a range from 0 to 5. Criterion #3 was largely subjective and was scorable on a range based upon the Committee members' individual perspectives of the value of the enhancements. There is a reasonable factual basis in the record for the Insurance Committee members to have differentiated along a range between the proposers on this criterion. Because each proposer offered different enhancements, it was a matter of discretion for each Committee member, in his or her own judgment, to rate those enhancements based on their perceived value to the employees of the Broward County School Board. The evidence is insufficient to show that the scoring on this criterion was arbitrary to any material or quantifiable extent. RWA Criterion #5 Since neither HIP, Humana, nor PCA received a perfect "4" in the aggregate on Criterion #5, the Insurance Committee members obviously viewed the scoring on this criteria as a range from 0 to 4. Criterion #5 was highly subjective and scorable on a range. The RFP required at section III, pages 6-8 that each provider's mental health subcontractors should "reflect the racial and ethnic composition of the School Board's employees." The Insurance Committee members could have differentiated along a range between the Proposers on this criteria. Each Proposer offered different mental health and substance abuse packages, and it was therefore a matter of wide discretion for each Committee member, in his or her own judgment, to rate those packages based on their perceived value to the employees of the Broward County School Board. The evidence is insufficient to show that the scoring on this criterion was arbitrary to any material or quantifiable extent. RWA Criterion #10 Since neither HIP, Humana, nor PCA received a perfect "+3" in the aggregate on Criterion #10, the Insurance Committee members obviously viewed the scoring on this criteria as a range from -3 to +3. The Insurance Committee members could have differentiated along a range between the Proposers on this criteria. For example, each Proposer offered a different number of on-site customer service representatives: HIP offered 6 representatives, Humana offered 2, and PCA offered 1. Members of the Insurance Committee could have evaluated Proposers based not just on whether they would, but whether they could, provide the requested services. This inference could be drawn by a Committee member based on the Proposer's references, which demonstrated their prior ability to perform, and the number of years that the Proposer has been a health care provider. The evidence is insufficient to show that the scoring on this criterion was arbitrary to any material or quantifiable extent. RWA Criterion #11 Since neither HIP, Humana, nor PCA received a perfect "+3" in the aggregate on Criterion #11, the Insurance Committee members obviously viewed the scoring on this criteria as a range from -3 to +3. The Insurance Committee members could have differentiated along a range between the Proposers on this criteria. Just as with Criterion #10, the Insurance Committee members could have evaluated Proposers based not just on whether they would, but whether they could, comply with the requested services. The evidence is insufficient to show that the scoring on this criterion was arbitrary to any material or quantifiable extent. The M/WBE Criteria The M/WBE criteria was broken down into two categories: workforce environment and vendor participation. Out of 10 possible points, the Committee decided to allow a maximum of 3 points for workforce environment and 7 points for minority participation. The RFP, however, expressly indicated that Proposers who did not have an administrative office in Broward County would be scored lower than Proposers that did. (See Paragraph 9 of these Findings of Fact.) PCA does not have an administrative office in Broward County. Both HIP and Humana do have administrative offices in Broward County. This information alone was sufficient for the Insurance Committee, in its honest discretion, to score PCA less than HIP and Humana. The M/WBE Participation Proposal Analysis prepared by the School Board's Equal Employment Opportunity Department indicated that Humana anticipated that 48 percent of its primary care physicians would be M/WBEs, that 35 percent of its specialty physicians would be M/WBEs, and that 43.5 percent ($157,783,000) of the total dollars paid to physicians in 1994 were paid to M/WBEs. PCA did not provide a breakdown of the ratio of its M/WBE physicians to the total number of physicians. Instead, PCA indicated that it had about 378 total M/WBE physicians and that the total fees that would be paid to such physicians were estimated to be $853,944. Humana was the only Proposer to provide a breakdown of its physicians by ethnicity and gender. There was other sufficient information available to the Insurance Committee members upon which they could reasonably have scored PCA lower than HIP and Humana in their "honest exercise of discretion." The evidence is insufficient to show that the scoring of the M/WBE criteria was arbitrary to any material or quantifiable extent. Bias PCA did not present any evidence that any of the Insurance Committee members were biased for or against any of the Proposers. A comparison of the scores of the various Insurance Committee members indicate that they were, for the most part, in reasonably good agreement with respect to how they rated HIP, Humana, and PCA on each criteria. There are, however, as mentioned below, a number of scores that appear to be abberations. Some General Observations The evidence in this case is sufficient to show that at least one member of the Insurance Committee made at least some scoring decisions on the basis of arbitrary considerations. The evidence also establishes that another member of the Insurance Committee made all of his material scoring decisions on the basis of appropriate considerations. The evidence does not show the reasoning behind any of the scoring decisions of any of the other twelve members of the Insurance Committee. Accordingly, the evidence is insufficient to establish that any of the scoring decisions of any of the other twelve Committee members was arbitrary. The arbitrary scoring decisions of one member of the Insurance Committee have not been described in detail in these Findings of Fact because the impact of those few scores on the average scores is de minimus. If all of the average scores were to be recalculated to take into account the few arbirary scores that were proved there would be no significant change in the ranking of the parties. There were some scores by some members of the Insurance Committee that, on the record in this case, appear to be what can best be described as unexplained abberations. Because they are unexplained, the evidence is insufficient to establish that these apparent abberations were based on arbitrary considerations. It is possible they were merely honest mistakes. It is possible there is some logical explanation for some or all of the apparent abberations, which explanation is not part of the record in this case because the members who cast those votes were not called as witnesses. Unexplained abberations are an insufficient basis upon which to conclude that a bidding process is arbitrary. Final Rankings According to the July 17, 1995 scores, PCA's best score was 5.96 points lower than Humana's score. Using the September 5, 1995 scores (and thus giving PCA the benefit of the doubt of higher scores on those criteria that were objectively verifiable), PCA's best score is still be 4.21 points lower than Humana's score. Even if the M/WBE scores were not considered, PCA's best score using the September 5, 1995 scoring would be 1.35 points lower than Humana's. Even if PCA were given the full 10 points for the M/WBE criteria, PCA's best score using the September 5, 1995 scoring would still be .67 points lower than Humana's.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing the Petition and Formal Protest filed by the Petitioner and denying all relief requested by the Petitioner. DONE and ENTERED this 8th day of December, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 8th day of December, 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner: Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in substance, but with a large number of argumentative or editorial details omitted. Paragraph 4: First two sentences accepted in substance. The remainder of this paragraph is rejected as subordinate and unnecessary details, or as irrelevant. Paragraph 5: Rejected as consisting primarily of quotations of testimony and of subordinate and unnecessary details. Paragraph 6: Rejected as subordinate and unnecessary details. Paragraphs 7 through 10: Accepted in substance. Paragraph 12: Rejected as subordinate and unnecessary details that are not entirely accurate. Paragraph 13: Accepted in substance. Paragraph 14: Most of this paragraph has been rejected as consisting of subordinate and unnecessary details and of quotations of testimony; portions also rejected as irrelevant. Paragraphs 15 through 21: Accepted in substance, but with some argumentative and editorial language omitted. Paragraph 22: First two sentences accepted in substance. The remainder is rejected as consisting primarily of argument, of summaries of testimony, and of subordinate and unnecessary details. Paragraph 23: Accepted in substance. Paragraph 24: The basic substance of this paragraph has been accepted, but the majority of the details have been omitted as subordinate and unnecessary or as quotations rather than proposed findings of fact. Paragraph 25: Rejected as subordinate and unnecessary details or as irrelevant. Paragraph 26: Rejected as comprised primarily of argument and proposed legal conclusions, rather than proposed findings of fact. Paragraphs 27 through 31: Accepted in substance, but with a number of argumentative, subordinate, and unnecessary details omitted. Paragraph 32: Rejected as comprised primarily of argument and proposed legal conclusions, rather than proposed findings of fact. Paragraph 33: Rejected as comprised primarily of a statement of another party's position, rather than proposed findings of fact. Paragraphs 34 and 35: Rejected as comprised primarily of argument and proposed legal conclusions, rather than proposed findings of fact. Also rejected as irrelevant, inasmuch as the School Board has agreed that PCA should receive full credit on the subject criterion. Paragraph 36: Rejected as irrelevant, inasmuch as the School Board has agreed that PCA should receive full credit on the subject criterion. Paragraph 37: Most of this paragraph has been rejected as being argumentative, as consisting of subordinate and unnecessary details, or as irrelevant. A few facts from this paragraph have been accepted. Paragraph 38: Most of this paragraph has been rejected as subordinate and unnecessary details, or as irrelevant because, even if accepted, evidence of improper voting by one of fourteen members would not be a sufficient basis upon which to conclude that the Petitioner was entitled to any relief. The last sentence of this paragraph has been rejected as too vague to be meaningful and as not fully supported by the persuasive competent substantial evidence. Paragraph 39: Rejected as subordinate and unnecessary details. Paragraphs 40 through 44: Rejected as consisting primarily of argument and legal conclusions, rather than proposed findings of fact. Paragraphs 45 through 58: These paragraphs are, for the most part, rejected for several reasons. They include many subordinate and unnecessary details. They are comprised extensively of argument, much of which argument is predicated on theories which are not persuasive to the Hearing Officer. Paragraph 59: Rejected as subordinate and unnecessary details. Paragraph 60: Rejected as a combination of argument and subordinate and unnecessary details. Paragraphs 61 and 62: These paragraphs are, for the most part, rejected for several reasons. They include many subordinate and unnecessary details. They are comprised extensively of argument, much of which argument is predicated on theories which are not persuasive to the Hearing Officer. Paragraph 63 through 65: First three sentences of paragraph 63 are accepted in substance. The remainder of these three paragraphs is rejected as irrelevant because they deal with an issue not properly raised in this case. Paragraph 66: Rejected as consisting primarily of argument with subordinate and unnecessary details. Paragraph 67: First sentence is accepted in substance. The remainder of this paragraph is rejected as argument. Proposed findings submitted by Respondent: (None submitted; Respondent adopted the findings proposed by Intervenor HIP.) Proposed findings submitted by Intervenor HIP: Paragraphs 1 through 9: Accepted in whole or in substance. Paragraph 10: Rejected as subordinate and unnecessary details not relevant to the disposition of this case. Paragraphs 11 through 40: Accepted in whole or in substance. Paragraphs 41 through 45: These paragraphs consist of descriptions of a party's positions or arguments; they belong more appropriately in the conclusions of law than in the findings of fact. Paragraphs 46 and 47: Rejected as subordinate and unnecessary details. Paragraphs 48 and 49: The form of these paragraphs is rejected as constituting summaries or quotations of testimony, rather than proposed findings of fact. The underlying essence has been accepted in substance. Paragraph 50: Accepted. Paragraphs 51: Accepted in substance. Paragraphs 52 and 53: Rejected as summaries of testimony, rather than proposed findings of fact. Also rejected as subordinate and unnecessary details. Paragraph 54: Accepted in substance. through 54: The form of these paragraphs is rejected as constituting summaries or quotations of testimony, rather than proposed findings of fact. The underlying essence has been accepted in substance. Paragraphs 55 and 56: Rejected as summaries of testimony, rather than proposed findings of fact. Also rejected as subordinate and unnecessary details. Paragraph 57: This paragraph consists of descriptions of a party's positions or arguments; it belongs more appropriately in the conclusions of law than in the findings of fact. Paragraph 58: Rejected as subordinate and unnecessary details. Paragraph 59: Accepted. Paragraphs 60 through 62: Rejected as summaries or quotations of testimony, or as subordinate and unnecessary details. Paragraph 63: Rejected as a statement of a party's position, rather than a finding of fact based on the evidence. Paragraphs 64 and 65: Rejected as summaries or quotations of testimony, or as subordinate and unnecessary details. Paragraph 66: The first sentence of this paragraph is accepted in substance. Most of the details in the several subparagraphs of paragraph 66 are rejected as subordinate and unnecessary details. Paragraph 67: This paragraph consists of descriptions of a party's positions or arguments; it belongs more appropriately in the conclusions of law than in the findings of fact. Paragraphs 68 through 72: Accepted in substance with a large number of subordinate and unnecessary details omitted. Paragraph 73: This paragraph consists of descriptions of a party's positions or arguments; it belongs more appropriately in the conclusions of law than in the findings of fact. Paragraphs 74 through 77: Accepted in substance with a large number of subordinate and unnecessary details omitted. Paragraph 78: This paragraph consists of descriptions of a party's positions or arguments; it belongs more appropriately in the conclusions of law than in the findings of fact. Paragraphs 79 through 81: Accepted in substance with a large number of subordinate and unnecessary details omitted. Paragraph 82: Accepted. Paragraph 83: This paragraph consists of descriptions of a party's positions or arguments; it belongs more appropriately in the conclusions of law than in the findings of fact. Paragraphs 84 through 86: Accepted. Paragraph 87: Rejected as subordinate and unnecessary details. Paragraph 88: Rejected as consisting of a summary of testimony, rather than proposed findings of fact. Also rejected as subordinate and unnecessary details. Paragraph 89: Accepted in substance. Paragraph 90: This paragraph consists of descriptions of a party's positions or arguments; it belongs more appropriately in the conclusions of law than in the findings of fact. Paragraph 91: This paragraph is rejected as consisting primarily of argument about the weight of the evidence, rather than consisting of proposed findings of fact. Paragraphs 92 through 94: Rejected as subordinate and unnecessary details. Paragraphs 95 through 97: Accepted. Paragraph 98: Rejected as subordinate and unnecessary details. Paragraph 99: Accepted. Paragraph 100: First sentence rejected as constituting primarily argument about the weight to be given to the evidence. Second sentence accepted in substance. Paragraph 101: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details. Paragraphs 102 through 104: Rejected as subordinate and unnecessary details. Paragraphs 105 through 107: Rejected as irrelevant or as subordinate and unnecessary details. Paragraph 108: Accepted in substance. Paragraphs 109 through 111: Rejected as subordinate and unnecessary details. Paragraphs 112 and 113: Rejected as comprised primarily of arguments, rather than proposed findings of fact. Also rejected as subordinate and unnecessary details. Paragraphs 114 through 117: Accepted. Proposed findings submitted by Intervenor Humana: (None submitted; Intervenor Humana adopted the findings proposed by Intervenor HIP.) COPIES FURNISHED: Andrew S. Berman, Esquire Young, Berkman, Berman & Karpf, P.A. 17071 West Dixie Highway North Miami Beach, Florida 33160 Edward J. Marko, Esquire Marko & Stephany 1401 East Broward Blvd, Ste. 201 Fort Lauderdale, Florida 33301 Robert L. Shevin, Esquire Richard Simring, Esquire Strook & Strook & Lavan 200 South Biscayne Boulevard Suite 3300 Miami, Florida, 33131 W. George Allen, Esquire Allen, Hursey and Lucas 305 South Andrews Avenue Suite 701 Fort Lauderdale, Florida 33302 Gerald M. Cohen, Esquire 300 South Park Road Hollywood, Florida 33021 Holly Skolnick, Esquire Greenberg, Traurig, Hoffman, Lipoff Rosen & Quentel, P.A. 1221 Brickell Avenue Miami, Florida 33131 Dr. Frank R. Petruzielo Superintendent of Schools Broward County School District 600 S. E. Third Avenue Fort Lauderdale, Florida 33301-3125
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 At all times relevant to this proceeding, Respondent, Carl Austin Jorgensen, was licensed by the Petitioner, Department of Insurance, as an ordinary-combination life including disability insurance agent and a solicitor for property, casualty, surety and miscellaneous lines insurance. He has held a license since 1956. During the time in which the alleged violations occurred, Respondent was employed by Simons and Rose Agency, an insurance firm located in Coconut Grove, Florida. Respondent wished to establish an insurance agency with his wife, Maren Jorgensen, who was licensed as a general lines agent. He discussed this with her on several occasions in 1977, but she would not agree. Her consent was necessary since agency applications must be submitted by a licensed general lines agent. On or about August 10, 1977, Respondent prepared and submitted an application for agency appointment to the Florida Joint Underwriters Association (FJUA) . The Association is the successor to the automobile assigned risk plan in Florida and was established to provide insurance coverage to those automobile drivers who are otherwise unable to obtain voluntary insurance coverage. The application was submitted under the name of All Lines Insurance Agency, 222 NorthEast 20th Street, Miami, Florida, and bore the name and signature of Maren Jorgensen, the Respondent's wife (Petitioner's Exhibit 2). The application was actually signed by Respondent, who had forged his wife's name (Petitioner's Exhibit 7). As a licensed general lines agent, Maren Jorgensen held a 2-20 license. This license was required in order to be qualified to sell insurance through the FJUA. Respondent held no such license, and as such, was unqualified to write policies. Upon receipt of the application, the FJUA reviewed it, and having determined that Maren Jorgensen held an appropriate license, assigned Nationwide Mutual Fire Insurance Company to write policies for All Lines' customers. Maren Jorgensen was unaware of the application being filed, and did not consent to the use of her name. At no time did she participate in or otherwise supervise the running of the business. Rather, Respondent himself operated the agency until early 1978, when it ceased to do business. On or about December 23, 1977, Respondent solicited and sold two automobile insurance policies to Lowell McLean, III, a long-time acquaintance. These policies were issued by Nationwide Mutual Fire Insurance Company and were numbered J58721 and J57869 (Petitioner's Exhibits 3 and 5) The applications bore the name and signature of his wife as producing agent. However, the applications were prepared and submitted by Respondent without her knowledge and consent. The Florida Department of Law Enforcement (FDLE) verified that Respondent had forged her signature (Petitioner's Exhibit 7) On or about November 26, 1977, Respondent solicited and sold an automobile insurance policy to Michael J. Halen. This policy was issued by Nationwide Mutual Fire Insurance Company and was numbered J56852 (Petitioner's Exhibit 4). It bore the name and signature of Respondent's wife as producing agent. However, the application was prepared and submitted without the knowledge and consent of Maren Jorgensen. Again, the FDLE verified that Respondent had actually signed her name (Petitioner's Exhibit 7). Two relatively small commission checks were sent by Nationwide to Maren Jorgensen as producing agent for the sale of the three policies. The checks were mailed to the address of All Lines, without the knowledge of the wife. Respondent appropriated one of the checks for his own personal use. His wife accidentally discovered the other in her husband's wallet and then cashed it herself. Respondent sold only three policies involving two customers during his association with All Lines. None of the three transactions resulted in harm or financial loss to either the customers or the insurance company. During the period when the aforesaid events occurred, Respondent and his wife, although living together, were experiencing marital difficulties. In fact, his wife characterized this time-frame as being a "rather stormy period". They are now separated. Respondent acknowledged the charges in the complaint, but attributed these indiscretions to his desire to rehabilitate the marriage by cultivating a successful insurance business with his wife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Carl Austin Jorgensen's ordinary-combination life including disability insurance license be suspended for a period of eighteen (18) months from the date of the final order entered in this proceeding for those violations of Chapter 626, Florida Statutes (1977) described herein above. DONE and ENTERED this 22nd day of April, 1981, 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 22nd day of April, 1981. COPIES FURNISHED: Deborah A. Getzoff, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 William A. Meadows Jr., Esquire 6101 SW 76th Street South Miami, Florida 33143
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed with the Division of Administrative Hearings on September 15, 2000, and, if so, the penalty that should be imposed.
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 Department of Insurance is the state agency responsible for licensing insurance agents in Florida and with regulating their conduct. Section 624.307 and Chapter 626, Part I, Florida Statutes (1999). At the times material to this proceeding, Ingrid Machado was Florida-licensed insurance agent. In March 1999, Teresita Baldor was interested in purchasing health insurance. Ms. Baldor had previously owned a private school and had been insured through the school's group health insurance policy. After she sold the school and began teaching mathematics at Miami-Dade Community College and Saint Thomas University, she no longer had health insurance coverage. On or about March 10, 1999, Ms. Machado met with Ms. Baldor at Ms. Baldor's home. Ms. Baldor knew Ms. Machado only as an insurance agent and did not know whether Ms. Machado was affiliated with an insurance agency. Ms. Machado told Ms. Baldor during the March 10, 1999, visit that she would try to place Ms. Baldor in a group for health insurance purposes but that she did not know at that time the group Ms. Baldor would be placed in or the name of the insurance company that would provide the health insurance coverage. Ms. Machado told Ms. Baldor during the visit that she would let Ms. Baldor know the name of the company providing her coverage and that she would send Ms. Baldor the coverage information. During her March 10, 1999, visit to Ms. Baldor's home, Ms. Machado asked Ms. Baldor for general identification information, such as her name and social security number, and for other information, such as her weight. Ms. Baldor did not sign any document during this visit and cannot recall if Ms. Machado completed any form during their conversation. Ms. Machado asked Ms. Baldor to make out two checks, one in the amount of $175.00 and one in the amount of $100.00, but Ms. Baldor does not remember Ms. Machado's telling her the reason she needed two separate checks. Ms. Machado asked Ms. Baldor to leave the line for the name of the payee blank, again telling Ms. Baldor that she did not yet know which insurance company would ultimately provide health insurance coverage to Ms. Baldor. Ms. Machado told Ms. Baldor that the name of the company would be filled in on the checks at a later time. Ms. Machado told Ms. Baldor that she would have health insurance coverage effective March 15, 1999. On or about March 20, 1999, Ms. Baldor telephoned Ms. Machado because Ms. Baldor had not received any information regarding health insurance coverage. Ms. Machado told Ms. Baldor that she was having complications with her pregnancy and could no longer handle Ms. Baldor's insurance matters. Ms. Machado gave Ms. Baldor the telephone number of the "Durey Agency," told her that this agency would work with her to obtain health insurance coverage, and gave her Ray Gonzalez's name. Ms. Machado had no further contact with Ms. Baldor after the telephone conversation on or about March 20, 1999, during the times material to this proceeding. At some point, Ms. Baldor called the telephone number Ms. Machado had given her to find out why she had not received any information regarding her health insurance coverage. Ms. Baldor told the person who answered the phone, a woman named Maria, that she wanted her checks back if she could not give her any information "right then." Later the same day, Maria called Ms. Baldor and told her that she had been placed in a group for health insurance purposes. A Neighborhood Health Partnership Enrollment Form was submitted to the Neighborhood Health Partnership on behalf of Ms. Baldor. On the form, Ms. Baldor was identified as an employee of "International Marketing." A signature appeared on the bottom of the form purporting to be that of Ms. Baldor, and the date next to the signature was "5/10/99." Ms. Baldor never saw the Neighborhood Health Partnership Enrollment Form. A few weeks after Maria told Ms. Baldor that she had been placed in a group for health insurance purposes, Ms. Baldor received a package from the Neighborhood Health Partnership that contained an identification card indicating that she was enrolled in the "International Marketing Group" and indicating that her insurance coverage with the Neighborhood Health Partnership was effective as of June 15, 1999. During Ms. Baldor's conversations with Ms. Machado, Ms. Machado never mentioned the Neighborhood Health Partnership or International Marketing Group. The checks Ms. Baldor provided to Ms. Machado were made payable to the Durey Insurance Group and were processed by the bank on or about May 17, 1999. In addition, Ms. Baldor wrote checks to the Durey Insurance Group dated July 10, 1999, and August 9, 1999, as payment for her health insurance premiums. Ms. Baldor's insurance coverage with the Neighborhood Health Partnership was eventually cancelled. It was Ms. Baldor's understanding that it was cancelled because the Durey Insurance Group did not remit her premium to the Neighborhood Health Partnership and because the "International Marketing Group" in which she was placed by the Durey Insurance Group did not exist. Summary The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado's actions with respect to her dealings with Ms. Baldor demonstrated a lack of fitness or trustworthiness or demonstrated that Ms. Machado lacked reasonably adequate knowledge and technical competence to engage in the transaction of insurance. The Department presented no evidence to establish any standards of skill, ability, knowledge, or competence by which Ms. Machado's acts or omissions can be judged to determine if she committed any of the violations with which Ms. Machado is charged. It is not possible to determine from the evidence presented if Ms. Machado's actions deviated from a standard of fitness or trustworthiness which a reasonably prudent insurance agent would be expected to exhibit under the circumstances or if Ms. Machado's conduct fell below a standard establishing the degree of knowledge and technical competence which a reasonably prudent insurance agent would be expected to exhibit under the circumstances. 2/ The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado engaged in any unfair method of competition or deceptive practices or knowingly made any misrepresentations to Ms. Baldor regarding health insurance coverage. The uncontroverted evidence establishes that Ms. Machado took some minimal information from Ms. Baldor and told her she would place her in a group for health insurance coverage. The uncontroverted evidence further establishes that Ms. Machado did not represent to Ms. Baldor that she would place Ms. Baldor in any specific group, that she would place Ms. Baldor with any particular insurance company, 3/ or that Ms. Baldor would be provided with any specific coverage or benefits. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado knowingly collected from Ms. Baldor any sums in excess of premium because, at the time Ms. Machado collected the two checks from Ms. Baldor, Ms. Machado did not know which insurance company would write health insurance coverage for Ms. Baldor and, therefore, did not know what the premium would be. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado knowingly collected from Ms. Baldor any premium for insurance that was not, in due course, provided. The uncontroverted evidence establishes that Ms. Machado initially agreed to procure health insurance coverage for Ms. Baldor; however, because of her pregnancy, Ms. Machado referred Ms. Baldor to the Durey Insurance Group approximately ten days after Ms. Machado's only meeting with Ms. Baldor and advised Ms. Baldor that the Durey Insurance Group would assist Ms. Baldor in obtaining health insurance. There is no persuasive evidence establishing that Ms. Machado knew or should have known that Durey Insurance Group would not, in due course, provide legitimate health insurance coverage to Ms. Baldor. The evidence presented by the Department is not sufficient to establish that Ms. Machado had any involvement, directly or indirectly, in the transaction in which the Durey Insurance Group identified Ms. Baldor as an employee of "International Marketing" and obtained health insurance for Ms. Baldor with the Neighborhood Health Partnership as a member of the "International Marketing Group." 4/ Furthermore, the evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Ms. Machado's actions made her a source of injury to Ms. Baldor or anyone else. As noted above, the uncontroverted evidence establishes that, soon after Ms. Machado's visit with Ms. Baldor on March 10, 1999, Ms. Machado advised Ms. Baldor that she could not act as Ms. Baldor's agent in placing her with a health insurance company, that she had sent Ms. Baldor's information and checks to the Durey Insurance Group, and that Ms. Baldor should contact the Durey Insurance Group for further assistance. Ms. Baldor's contacts subsequent to the latter part of March 1999 with respect to her health insurance coverage were exclusively with personnel who purported to be affiliated with the Durey Insurance Group. A representative of the Durey Insurance Group notified Ms. Baldor that her health insurance would be provided by the Neighborhood Health Partnership, and Ms. Baldor's premium checks were made payable to the Durey Insurance Group. Finally, the Neighborhood Health Partnership Enrollment Form identifying Ms. Baldor as an employee of International Marketing is dated approximately two months after Ms. Machado's last contact with Ms. Baldor, and the Department failed to present any evidence tending to establish that Ms. Machado had any involvement in the preparation of this form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a final order dismissing the Amended Administrative Complaint against Ingrid Machado. DONE AND ENTERED this 15th day of November, 2000, 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 15th day of November, 2000.
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.
