08-001720 Sara Grimes vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Friday, September 12, 2008.

Summary: Former state employee who did not elect COBRA benefits within 60 days of termination of state benefits is not entitled to purchase continuation coverage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARA GRIMES, )

)

Petitioner, )

)

vs. ) Case No. 08-1720

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on July 11, 2008, in Orlando, Florida.

APPEARANCES

For Petitioner: Sara Grimes, pro se

3275 South John Young Parkway, No. 122

Kissimmee, Florida 34746

For Respondent: Sonja P. Matthews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible to purchase

continuous coverage of health insurance pursuant to the

Consolidated Omnibus Budget Reconciliation Act (COBRA), also

known as COBRA benefits, as COBRA is implemented in

Section 110.123, Florida Statutes (2005), and Florida

Administrative Code Rule 60P-2.015. 1

PRELIMINARY STATEMENT

By letter dated February 7, 2008, Respondent notified

Petitioner of the proposed denial of Petitioner's request to

purchase COBRA benefits following her termination of employment.

Petitioner timely requested an administrative hearing, and

Respondent referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified, presented the

testimony of two additional witnesses, and submitted 44 exhibits

for admission into evidence. Respondent called four witnesses

and submitted nine exhibits.

The identity of the witnesses and exhibits and the rulings

regarding each are set forth in the record of the hearing.

Neither party filed a transcript of the hearing with DOAH.

However, Petitioner represented at the hearing that she would

order a transcript, discovered the cost of a transcript,

attempted to obtain a transcript through a public records

request, and requested the undersigned to order the court

reporter to provide a transcript. The delay created confusion

for opposing counsel, and, pursuant to a motion from Petitioner,

the ALJ ordered the parties to file their respective proposed

recommended orders (PROs) no later than August 20, 2008. The

parties timely filed their PROs on August 20, 2008.

FINDINGS OF FACT

1. Petitioner is a former state employee who participated

in the state’s Group Insurance Program (GIP) until the

termination of her employment on November 3, 2005. Respondent

is the state agency responsible for the administration of GIP.

2. Respondent contracts with an entity identified in the

record as Convergys, Inc. (Convergys), for human resources

management services. Convergys provides the principal part of

its management services through an on-line computer system

identified in the record as People First. However, final

decisions concerning insurance coverage under GIP are

statutorily prohibited from being delegated to Convergys. 2

3. Health insurance premiums for state employees are paid

one month in advance. Petitioner was a state employee at least

one day in November 2005. Her participation and health

insurance coverage through GIP continued through December 2005.

4. It is undisputed that Petitioner was entitled to elect

COBRA benefits for 18 months following the termination of her

employment. It is also undisputed that Petitioner was required

to elect COBRA benefits no later than March 1, 2006,

approximately 60 days after December 31, 2005, when Petitioner’s

participation in GIP ended.

5. The employing agency sent Convergys a notice of

termination of employment. The People First system

automatically generated a COBRA notice on November 16, 2005.

The COBRA notice, in relevant part, informed Petitioner that an

election of COBRA benefits must be exercised no later than

March 1, 2006. Petitioner’s first contact with Convergys

regarding her COBRA benefits was on March 23, 2006.

6. Petitioner claims she never received the COBRA notice.

Convergys mailed the COBRA notice to the address of record for

Petitioner at 730 East Lake Shore Boulevard, Kissimmee, Florida.

Petitioner owned the house at the address of record, but the

house had been damaged. Prior to September 7, 2005, Petitioner

had changed her residence but continued to pick up the mail

delivered to the address of the damaged house. Prior to

March 23, 2006, Petitioner did not notify her employer or

Convergys of a change of address.

7. On September 7, 2005, the personnel office of the

employing agency sent a memorandum to agency employees,

including Petitioner, that included directions for updating

addresses of record. Petitioner did not take the action

directed in the memorandum. Rather, Petitioner completed a form

used by her supervisor for the supervisor’s individual use and

mistakenly assumed that her action was sufficient to notify

Convergys of a change in her address of record.

8. While Petitioner was an active employee, she could

change her address of record either through the personnel

office, in accordance with the memorandum Petitioner received on

September 7, 2005, or on-line through People First. Employees

of Convergys cannot permanently change the address of record of

an active employee. Once Petitioner terminated her employment,

an address change could only be made on-line through People

First.

9. The security function of the People First system notes

any access into an employee’s account. No address change was

made in Petitioner’s account. The COBRA notice was sent to the

address of record and was not returned.

10. Petitioner did not elect COBRA benefits on or before

March 1, 2006. Petitioner is not entitled to continuation

benefits under COBRA.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat. (2008). DOAH provided the parties with adequate

notice of the final hearing.

12. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that she

is entitled to COBRA benefits pursuant to Subsection 110.123(5)

and Rule 60P-2.015. Young v. Department of Community Affairs ,

625 So. 2d 831 (Fla. 1993); Florida Department of Transportation

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977).

13. Rule 60P-2.015(6), in relevant part, requires

Petitioner to apply for continuation coverage within 60 calendar

days after notification of eligibility. The COBRA notice

notified Petitioner that she must elect COBRA benefits no later

than March 1, 2006. For reasons stated in the Findings of Fact

and not repeated here, Petitioner did not elect COBRA benefits

in a timely manner and is not entitled to continuation coverage.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order denying

Petitioner's application to purchase COBRA benefits.

DONE AND ENTERED this 12th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of September, 2008.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2005), unless otherwise stated. References to

rules are to rules promulgated in the Florida Administrative

Code.

2/ § 110.123(5).

COPIES FURNISHED :

Sara Grimes

3275 South John Young Parkway, No. 122

Kissimmee, Florida 34746

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.