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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN ADAMS, PH.D., )

)

Petitioner, )

)

vs. ) Case No. 09-2135

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This case is before the undersigned based upon the Motion

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

response to the Order to Show Cause filed by Petitioner on

April 27, 2009. No hearing is necessary.

APPEARANCES

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

Post Office Box 1388

Tallahassee, Florida 32302

For Respondent: Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

ISSUE

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

PRELIMINARY STATEMENT

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

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

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

included Petitioner’s letter requesting a formal hearing

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

to Dismiss filed by Respondent.

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

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

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

Petitioner filed a response to the Order to Show Cause on

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

to Dismiss, the response is treated as a proposed amended

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

response are accepted as true.

Due consideration has been given to the legal argument in

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

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

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

All statutory references in this Recommended Order are to

the 2008 version of the Florida Statutes.

FINDINGS OF FACT

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

Petitioner that his Level II appeal was denied. The appeal

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

coverage for a Magnetic Resonance Imaging Spectography procedure

that Petitioner underwent in July 2008.

2. The letter informed Petitioner of his right to request

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

informed Petitioner that the request must filed with DSGI within

21 days of his receipt of the letter.

3. Copies of Florida Administrative Code Rules 28-106.201

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

“informational page” that stated in pertinent part:

Your request (petition) for a formal hearing

must be in writing. We recommend you send

your request by certified mail so you will

have proof of the date the Department of

Management Services (DMS) receives it. You

lose your right to a hearing if we do not

receive your request on time. (Bold in

original and underlining added).

* * *

If you dispute the facts we used in our

decision, state them in your written request

for a hearing. Your request must meet the

requirements of rule 28-106.201, Florida

Administrative Code.

4. Petitioner received the letter denying his appeal on

February 9, 2009.

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

decision expired on March 2, 2009.

6. Petitioner requested a hearing on the denial of his

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

in pertinent part:

I am writing in protest of the decision

rendered against a health insurance claim I

submitted in July of 2008 by DSGI. I

believe that the decision to DENY my health

insurance is improper, the reasons for which

actually encourage further health risks by

limiting my health care options to only

procedures that are inherently dangerous by

promoting the spread of cancer.

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

7. Petitioner mailed this letter to DSGI. The postmark

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

2009, which is after the applicable filing deadline.

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

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

with the Clerk of the Department of Management Services on

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

9. Petitioner’s request for hearing was untimely because

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

denying his Level II appeal.

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

Petitioner an opportunity to explain why his untimely petition

should not be dismissed.

11. The letter filed by Petitioner in response to the

Order to Show Cause stated in pertinent part:

I apologize for missing the 21 day deadline

to file a request for hearing. I do not

waive my rights.

1. I cannot afford legal representation

in this matter. I received the letter dated

January 29 from the Department of Management

Services [and] I was led to believe that a

full and complete response -- one that was

equal to the five-page letter I received --

was necessary. Because of the amount of

information I felt that I was required to

assemble, and demands on my life

circumstances I [was] unable to file in a

timely manner.

12. The response to the Order to Show Cause also

articulates what Petitioner believes to be the merit of his

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

procedural technicalities.”

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

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

pertinent part:

Any party whose substantial interests have

been or will be determined by a decision or

intended decision of the Division of State

Group Insurance and who desires to contest

the agency’s decision or intended decision

shall submit a petition for an

administrative hearing that complies with

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

dispute of material fact, or Rule 28-

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

material fact. The petition must be

received by the agency clerk of the

Department within twenty-one (21) calendar

days after notice of the decision or

intended decision is received by the party.

The clerk’s address is Office of General

Counsel, Department of Management Services,

4050 Esplanade Way, Tallahassee, FL 32399-

0949. Proceedings shall be conducted

pursuant to Chapter 120, Florida Statutes,

and Rule Chapter 28-106. (Emphasis

supplied).

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

provides:

Any person who receives written notice of an

agency decision and who fails to file a

written request for a hearing within 21 days

waives the right to request a hearing on

such matters. This provision does not

eliminate the availability of equitable

tolling as a defense.

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

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

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

106.104(1); Watson v. Brevard County Clerk , 937 So. 2d 1264,

1266 (Fla. 5th DCA 2006).

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

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

untimely filed.” (Emphasis supplied).

18. Petitioner does not dispute that his request for

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

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

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

19. Nevertheless, Petitioner argues that his request for

hearing should not be dismissed on this “technicality” because

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

argument.

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

request for hearing is mandatory based upon Section

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

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

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

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

2d 1149, 1151 (Fla. 5th DCA 2003); Cann v. Dept. of Children &

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

21. The case cited by Petitioner interpreting and applying

the doctrine of excusable neglect to preserve a potentially

meritorious claim is distinguishable because it arose under the

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

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

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

failure to timely file a proof of claim in a bankruptcy

proceeding may constitute “excusable neglect” within the meaning

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

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

Order to Show Cause constitute excusable neglect (and it is

unlikely that they would), those facts would not save

Petitioner’s untimely request for hearing from dismissal.

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

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

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

24. Equitable tolling applies only when the petitioner

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

extraordinary way been prevented from asserting his rights, or

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

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

1988).

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

might implicate the equitable tolling doctrine.

26. The fact that Petitioner is representing himself is

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

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

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

excuse inaction that results in an untimely petition for

hearing)

27. Likewise, the facts that Petitioner had other demands

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

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

doctrine of equitable tolling. Petitioner did not allege in his

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

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

case file that in any way suggests that DSGI misled Petitioner

regarding the procedure or timeframe for requesting a hearing.

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

to the Order to Show Cause reflect that DSGI clearly advised

Petitioner of the timeframe and procedure for requesting a

hearing as well as the consequences for failure to timely

request a hearing.

28. Simply put, there is nothing extraordinary about

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

Rather, as was the case in Environmental Resource Associates of

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

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

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

deadline.”

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

dismissed because it was filed with the Department more than 21

days after Petitioner received the letter denying his Level II

appeal.

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

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

request for hearing with prejudice is appropriate. See

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

amended petition curing the defect, unless it conclusively

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

cured.”).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DSGI issue a final order dismissing

Petitioner’s request for hearing.

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

Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of May, 2009.

ENDNOTES

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

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

case file that 2008 was a scrivener’s error.

2 / No findings are made concerning the alleged merit of

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

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

to hearing, the issue would not have been whether Petitioner

needed the medical procedure at issue, but rather whether the

procedure met the insurance plan’s definition of an

“experimental or investigational procedure” that is excluded

from coverage.

COPIES FURNISHED :

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Jonathan Adams, Ph.D.

Post Office Box 1388

Tallahassee, Florida 32302

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.