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.
Recommended Order on Tuesday, May 5, 2009.
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 Petitioners 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 Petitioners 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 Respondents 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 Petitioners 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 Floridas 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
426informational 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. Petitioners 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. Petitioners 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 agencys 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 clerks 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 Petitioners
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 attorneys
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
1473Petitioners 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
1517has 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 Petitioners 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
1764Petitioners 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, Petitioners 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 Petitioners 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
1930Petitioners 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 scriveners error.
20262 / No findings are made concerning the alleged merit of
2037Petitioners 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 plans definition of an
2088experimental 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.
- Date
- Proceedings
- PDF:
- Date: 04/27/2009
- Proceedings: Letter to Judge Wetherell from Jonathan Adams regarding request for hearing filed.
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
-
Jonathan Adams, Ph.D.
Address of Record -
Sonja P. Mathews, Esquire
Address of Record