09-002135 Jonathan Adams, Ph.D. vs. Department Of Management Services, Division Of State Group Insurance
 Status: Closed
Recommended Order on Tuesday, May 5, 2009.


View Dockets  
Summary: Request for hearing that was not timely filed should be dismissed.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JONATHAN ADAMS, PH.D., )

12)

13Petitioner, )

15)

16vs. ) Case No. 09-2135

21)

22DEPARTMENT OF MANAGEMENT )

26SERVICES, DIVISION OF STATE )

31GROUP INSURANCE, )

34)

35Respondent. )

37)

38RECOMMENDED ORDER OF DISMISSAL

42This case is before the undersigned based upon the Motion

52to Dismiss filed by Respondent on April 21, 2009, and the

63response to the Order to Show Cause filed by Petitioner on

74April 27, 2009. No hearing is necessary.

81APPEARANCES

82For Petitioner: Jonathan Adams, Ph.D., pro se

89Post Office Box 1388

93Tallahassee, Florida 32302

96For Respondent: Sonja P. Mathews, Esquire

102Department of Management Services

106Office of the General Counsel

1114050 Esplanade Way, Suite 260

116Tallahassee, Florida 32399

119ISSUE

120The issue is whether Petitioner’s request for hearing should be dismissed as untimely.

133PRELIMINARY STATEMENT

135On April 21, 2009, the Department of Management Services,

144Division of State Group Insurance (DSGI), referred this matter

153to the Division of Administrative Hearings (DOAH). The referral

162included Petitioner’s letter requesting a formal hearing

169concerning the denial of an insurance claim as well as a Motion

181to Dismiss filed by Respondent.

186On April 23, 2009, the undersigned issued an Order to Show

197Cause directing Petitioner to “show cause in writing as to why

208his request for hearing should not be dismissed as untimely.”

218Petitioner filed a response to the Order to Show Cause on

229April 27, 2009. For purposes of ruling on Respondent’s Motion

239to Dismiss, the response is treated as a proposed amended

249request for hearing, and all well-pled allegations in the

258response are accepted as true.

263Due consideration has been given to the legal argument in

273the Motion to Dismiss and in Petitioner’s response to the Order

284to Show Cause. No hearing is necessary to rule on the Motion to

297Dismiss. See Fla. Admin. Code R. 28-106.204(1).

304All statutory references in this Recommended Order are to

313the 2008 version of the Florida Statutes.

320FINDINGS OF FACT

3231. In a letter dated January 29, 2009, 1 / DSGI informed

335Petitioner that his Level II appeal was denied. The appeal

345concerned Blue Cross and Blue Shield of Florida’s denial of

355coverage for a Magnetic Resonance Imaging Spectography procedure

363that Petitioner underwent in July 2008.

3692. The letter informed Petitioner of his right to request

379an administrative hearing on the denial of his appeal, and also

390informed Petitioner that the request must filed with DSGI within

40021 days of his receipt of the letter.

4083. Copies of Florida Administrative Code Rules 28-106.201

416and 28-106.301 were attached to the letter, as was an

426“informational page” that stated in pertinent part:

433Your request (petition) for a formal hearing

440must be in writing. We recommend you send

448your request by certified mail so you will

456have proof of the date the Department of

464Management Services (DMS) receives it. You

470lose your right to a hearing if we do not

480receive your request on time. (Bold in

487original and underlining added).

491* * *

494If you dispute the facts we used in our

503decision, state them in your written request

510for a hearing. Your request must meet the

518requirements of rule 28-106.201, Florida

523Administrative Code.

5254. Petitioner received the letter denying his appeal on

534February 9, 2009.

5375. The 21-day period for requesting a hearing on that

547decision expired on March 2, 2009.

5536. Petitioner requested a hearing on the denial of his

563appeal through a letter dated March 1, 2009. The letter stated

574in pertinent part:

577I am writing in protest of the decision

585rendered against a health insurance claim I

592submitted in July of 2008 by DSGI. I

600believe that the decision to DENY my health

608insurance is improper, the reasons for which

615actually encourage further health risks by

621limiting my health care options to only

628procedures that are inherently dangerous by

634promoting the spread of cancer.

639I am writing to request a formal hearing....

6477. Petitioner mailed this letter to DSGI. The postmark

656date on the envelope in which the letter was mailed was March 5,

6692009, which is after the applicable filing deadline.

6778. Petitioner’s request for hearing was received by DSGI

686on March 9, 2009 (seven days after the deadline), and was filed

698with the Clerk of the Department of Management Services on

708March 10, 2009 (eight days after the deadline).

7169. Petitioner’s request for hearing was untimely because

724it was filed more than 21 days after he received the letter

736denying his Level II appeal.

74110. The Order to Show Cause issued on April 23, 2009, gave

753Petitioner an opportunity to explain why his untimely petition

762should not be dismissed.

76611. The letter filed by Petitioner in response to the

776Order to Show Cause stated in pertinent part:

784I apologize for missing the 21 day deadline

792to file a request for hearing. I do not

801waive my rights.

8041. I cannot afford legal representation

810in this matter. I received the letter dated

818January 29 from the Department of Management

825Services [and] I was led to believe that a

834full and complete response -- one that was

842equal to the five-page letter I received --

850was necessary. Because of the amount of

857information I felt that I was required to

865assemble, and demands on my life

871circumstances I [was] unable to file in a

879timely manner.

88112. The response to the Order to Show Cause also

891articulates what Petitioner believes to be the merit of his

901case, 2 / which he argues “outweighs dismissal because of

911procedural technicalities.”

913CONCLUSIONS OF LAW

91613. DOAH has jurisdiction over the parties to and subject

926matter of this proceeding pursuant to Sections 120.569 and

935120.57(1), Florida Statutes.

93814. Florida Administrative Code Rule 60P-1.004 provides in

946pertinent part:

948Any party whose substantial interests have

954been or will be determined by a decision or

963intended decision of the Division of State

970Group Insurance and who desires to contest

977the agency’s decision or intended decision

983shall submit a petition for an

989administrative hearing that complies with

994Rule 28-106.201, F.A.C., if there is a

1001dispute of material fact, or Rule 28-

1008106.301, F.A.C., if there is no dispute of

1016material fact. The petition must be

1022received by the agency clerk of the

1029Department within twenty-one (21) calendar

1034days after notice of the decision or

1041intended decision is received by the party.

1048The clerk’s address is Office of General

1055Counsel, Department of Management Services,

10604050 Esplanade Way, Tallahassee, FL 32399-

10660949. Proceedings shall be conducted

1071pursuant to Chapter 120, Florida Statutes,

1077and Rule Chapter 28-106. (Emphasis

1082supplied).

108315. Florida Administrative Code Rule 28-106.111(4)

1089provides:

1090Any person who receives written notice of an

1098agency decision and who fails to file a

1106written request for a hearing within 21 days

1114waives the right to request a hearing on

1122such matters. This provision does not

1128eliminate the availability of equitable

1133tolling as a defense.

113716. A request for hearing is “filed” when it is received

1148by the agency clerk, not when it is mailed by the petitioner.

1160See Fla. Admin. Code R. 28-106.103 (last sentence) and 28-

1170106.104(1); Watson v. Brevard County Clerk , 937 So. 2d 1264,

11801266 (Fla. 5th DCA 2006).

118517. Section 120.569(2)(c), Florida Statutes, provides that

1192a request for hearing “ shall be dismissed if . . . has been

1206untimely filed.” (Emphasis supplied).

121018. Petitioner does not dispute that his request for

1219hearing was untimely filed. Indeed, in his response to the

1229Order to Show Cause, he candidly “apologize[s] for missing the

123921-day deadline to file a request for hearing.”

124719. Nevertheless, Petitioner argues that his request for

1255hearing should not be dismissed on this “technicality” because

1264of the merit of his case. The law does not support Petitioner’s

1276argument.

127720. It is well-settled that dismissal of an untimely

1286request for hearing is mandatory based upon Section

1294cannot save an untimely request for hearing. See , e.g. , Aleong

1304v. Dept. of Business & Professional Reg. , 963 So. 2d 799, 801

1316(Fla. 4th DCA 2007); Patz v. Dept. of Health , 864 So. 2d 79, 80

1330(Fla. 3d DCA 2003); Whiting v. Dept. of Law Enforcement , 849 So.

13422d 1149, 1151 (Fla. 5th DCA 2003); Cann v. Dept. of Children &

1355Family Servs. , 813 So. 2d 237, 239 (Fla. 2d DCA 2000).

136621. The case cited by Petitioner interpreting and applying

1375the doctrine of excusable neglect to preserve a potentially

1384meritorious claim is distinguishable because it arose under the

1393federal Bankruptcy Act, not Chapter 120, Florida Statutes. See

1402Pioneer Investment Services Co. v. Brunswick Assoc. Ltd.

1410Partnership , 507 U.S. 380 (1993) (holding that an attorney’s

1419failure to timely file a proof of claim in a bankruptcy

1430proceeding may constitute “excusable neglect” within the meaning

1438of Bankruptcy Rule 9006(b)(1)).

144222. Thus, even if the facts alleged in the response to the

1454Order to Show Cause constitute excusable neglect (and it is

1464unlikely that they would), those facts would not save

1473Petitioner’s untimely request for hearing from dismissal.

148023. The doctrine of “equitable tolling” may save an

1489untimely request for hearing. See § 120.569(2)(c), Fla. Stat.;

1498Fla. Admin. Code R. 28-106.111(4); Cann , 813 So. 2d at 239.

150924. Equitable tolling applies only when the petitioner

1517“has been misled or lulled into inaction, has in some

1527extraordinary way been prevented from asserting his rights, or

1536has timely asserted his rights mistakenly in the wrong forum.”

1546Machules v. Dept. of Administration , 523 So. 2d 1132, 1134 (Fla.

15571988).

155825. Petitioner has not alleged any facts that, if proven,

1568might implicate the equitable tolling doctrine.

157426. The fact that Petitioner is representing himself is

1583not a basis to apply the doctrine of equitable tolling. See

1594Jancyn Manufacturing Corp. v. Dept. of Health , 742 So. 2d 473,

1605476 (Fla. 1st DCA 1999) (lack of legal representation does not

1616excuse inaction that results in an untimely petition for

1625hearing)

162627. Likewise, the facts that Petitioner had other demands

1635in his life and that he assumed that he needed to file a “full

1649and complete” request for hearing are not bases to apply the

1660doctrine of equitable tolling. Petitioner did not allege in his

1670response to the Order to Show Cause that DSGI was in any way

1683responsible for these issues, and there is nothing else in the

1694case file that in any way suggests that DSGI misled Petitioner

1705regarding the procedure or timeframe for requesting a hearing.

1714To the contrary, the documents attached to Petitioner’s response

1723to the Order to Show Cause reflect that DSGI clearly advised

1734Petitioner of the timeframe and procedure for requesting a

1743hearing as well as the consequences for failure to timely

1753request a hearing.

175628. Simply put, there is nothing extraordinary about

1764Petitioner’s failure to timely file his request for hearing.

1773Rather, as was the case in Environmental Resource Associates of

1783Florida, Inc. v. Department of General Services , 624 So. 2d 330,

1794331 (Fla. 1st DCA 1993), “the problem in this case is the too

1807ordinary occurrence of a [party] failing to meet a filing

1817deadline.”

181829. In sum, Petitioner’s request for hearing must be

1827dismissed because it was filed with the Department more than 21

1838days after Petitioner received the letter denying his Level II

1848appeal.

184930. The defect in Petitioner’s request for hearing -- its

1859untimeliness -- cannot be cured and, therefore, dismissal of the

1869request for hearing with prejudice is appropriate. See

1877least once, be without prejudice to petitioner's filing a timely

1887amended petition curing the defect, unless it conclusively

1895appears from the face of the petition that the defect cannot be

1907cured.”).

1908RECOMMENDATION

1909Based upon the foregoing Findings of Fact and Conclusions

1918of Law, it is

1922RECOMMENDED that DSGI issue a final order dismissing

1930Petitioner’s request for hearing.

1934DONE AND ENTERED this 5th day of May, 2009, in Tallahassee,

1945Leon County, Florida.

1948S

1949T. KENT WETHERELL, II

1953Administrative Law Judge

1956Division of Administrative Hearings

1960The DeSoto Building

19631230 Apalachee Parkway

1966Tallahassee, Florida 32399-3060

1969(850) 488-9675

1971Fax Filing (850) 921-6847

1975www.doah.state.fl.us

1976Filed with the Clerk of the

1982Division of Administrative Hearings

1986this 5th day of May, 2009.

1992ENDNOTES

19931 / The letter was actually dated January 29, 2008 , but is clear

2006from the context of the letter and the other documents in the

2018case file that 2008 was a scrivener’s error.

20262 / No findings are made concerning the alleged merit of

2037Petitioner’s case in light of the procedural posture of this

2047case. However, it is noted that if this case were to have gone

2060to hearing, the issue would not have been whether Petitioner

2070needed the medical procedure at issue, but rather whether the

2080procedure met the insurance plan’s definition of an

2088“experimental or investigational procedure” that is excluded

2095from coverage.

2097COPIES FURNISHED :

2100Sonja P. Mathews, Esquire

2104Department of Management Services

2108Office of the General Counsel

21134050 Esplanade Way, Suite 260

2118Tallahassee, Florida 32399

2121Jonathan Adams, Ph.D.

2124Post Office Box 1388

2128Tallahassee, Florida 32302

2131John Brenneis, General Counsel

2135Department of Management Services

21394050 Esplanade Way

2142Tallahassee, Florida 32399-0950

2145NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2151All parties have the right to submit written exceptions within

216115 days from the date of this Recommended Order. Any exceptions

2172to this Recommended Order should be filed with the agency that

2183will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/25/2009
Proceedings: Final Order filed.
PDF:
Date: 08/20/2009
Proceedings: Agency Final Order
PDF:
Date: 05/05/2009
Proceedings: Recommended Order
PDF:
Date: 05/05/2009
Proceedings: Recommended Order of Dismissal. CASE CLOSED.
PDF:
Date: 05/05/2009
Proceedings: Recommended Order of Dismissal cover letter.
PDF:
Date: 04/27/2009
Proceedings: Response to Initial Order filed.
PDF:
Date: 04/27/2009
Proceedings: Letter to Judge Wetherell from Jonathan Adams regarding request for hearing filed.
PDF:
Date: 04/23/2009
Proceedings: Order to Show Cause (on or before May 8, 2009, Petitioner shall show cause in writing as to why his request for hearing should not be dismissed as untimely).
PDF:
Date: 04/21/2009
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 04/21/2009
Proceedings: Denial of Level II Appeal filed.
PDF:
Date: 04/21/2009
Proceedings: Respondent`s Motion to Dismiss filed.
PDF:
Date: 04/21/2009
Proceedings: Agency referral
PDF:
Date: 04/21/2009
Proceedings: Initial Order.

Case Information

Judge:
T. KENT WETHERELL, II
Date Filed:
04/21/2009
Date Assignment:
04/21/2009
Last Docket Entry:
08/25/2009
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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