09-002298 Justina Mullennix vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Friday, January 22, 2010.

Summary: Petitioner did not show that she or the decedent retiree had informed Respondent of a change of address. Respondent has a seperate database from the Division of Retirement. Therefore, Respondent's notice to the last-known address was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTINA MULLENNIX, )

)

Petitioner, )

)

vs. ) Case No. 09-2298

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came on for final hearing, by proper notice,

before P. Michael Ruff, duly-designated Administrative Law Judge

of the Division of Administrative Hearings. The hearing was

conducted on November 30, 2009, in Jacksonville, Florida. The

appearances were as follows:

APPEARANCES

For Petitioner: Justina Mullennix, pro se

1217 Skye Drive West

Jacksonville, Florida 32221

For Respondent: Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner, as beneficiary of her deceased father's

State of Florida life insurance policy, is entitled to a benefit

of $10,000 or $2,500, and is related to how notice of a change

in coverage amount and premium was provided to the decedent.

PRELIMINARY STATEMENT

Section 110.123, Florida Statutes, established the State of

Florida's State Group Insurance Program (Program), managed by

the Division of State Group Insurance (DSGI), an administrative

entity within the Department of Management Services (DMS). The

Program offers a variety of insurance plans to state officers,

employees, retirees, and their dependents, including life

insurance. Administrative rules applicable to the basic state

life insurance plan are found in Florida Administrative Code

Rule Chapter 60P.

The Petitioner is the daughter of Maurice T. Adkins, a

deceased State of Florida retiree. During all times relevant to

these proceedings, Mr. Adkins was a participant in the State of

Florida basic life insurance plan (life insurance) offered to

all State of Florida employees and/or retirees. After the death

of Mr. Adkins on November 29, 2008, the Petitioner was paid

$2,500.00, as beneficiary of the life insurance policy of

Mr. Adkins. The Petitioner disputes the denial of her request

for payment of a $10,000.00 benefit, and contends she is owed

$7,500.00.

The Administrative Law Judge has taken official recognition

of Section 110.123, Florida Statutes, Florida Administrative

Code Rule Chapter 60P, Florida Administrative Code Rule Chapters

60-1, and Rules 60P-2.005 (repealed 1996) and 22K-1, (repealed).

At the hearing, the Petitioner's Composite Exhibit 1, and

the Respondent's Exhibits 1-10, 13-22, 28, and 29 were admitted

into evidence. Upon conclusion of the hearing, a transcript was

ordered by the Respondent, and the parties were given 10 days

for submission of proposed recommended orders, after filing of

the hearing transcript and a post-hearing deposition transcript.

The transcript was filed on December 15, 2009, and the

transcript of the deposition of Sandie Wade was filed on

December 16, 2009. The Proposed Recommended Orders were timely

filed on or before December 24, 2009, and have been considered

in the rendition of this Recommended Order.

FINDINGS OF FACT

1. At the time of his death on November 29, 2008, Maurice

Adkins was covered by the state life insurance plan, as a

retired employee of the State of Florida.

2. The Petitioner, Justina Mullennix, is the daughter of

Mr. Adkins and is the beneficiary of any life insurance benefits

paid or payable from the state life insurance plan on account of

the death of her father.

3. Effective January 1, 2000, the coverage for retirees

was increased to $10,000.00. The premium for this coverage was

$4.20 per month. The DSGI prepared a letter dated July 31,

2006, to notify the retirees that effective January 1, 2007, the

life insurance benefit options provided to retirees would

change. The changes allowed retirees to elect one of the

following options:

a. $2,500 benefit for a monthly premium of $ 4.20.

b. $10,000 benefit for a monthly premium of $35.79.

c. Termination of coverage.

The letter dated July 31, 2006, informed retirees that their

life insurance premium would remain the same, but that their

coverage would be reduced to $2,500, unless they elected

coverage in the amount of $10,000 and elected to pay the higher

premium.

4. The letter advised the retirees they could change their

election up to and including January 19, 2007. Mike Waller, an

employee of the DSGI, maintains benefits data for the People

First/Division of State Group Insurance. In July 2006,

Mr. Waller was asked to prepare a file containing the names and

mailing addresses of all retirees who were covered by life

insurance. Mr. Waller created the file, prepared in July 2006,

to use in a "mail merge," to send all retirees a copy of the

letter dated July 31, 2006. In preparing the file containing

the mailing addresses of retirees covered by life insurance,

Mr. Waller used the addresses of record that he maintained.

5. In July 2006, the address of record for Mr. Adkins was

2877 Belair Road E., Jacksonville, Florida 32207, and was

included in the file. Mr. Waller prepared the file and on

July 3, 2006, delivered it to Dick Barnum and Thomas Lockeridge.

Thomas Lockeridge delivered the file to Laura Cutchen, another

employee of the DSGI. The DSGI contracted with Pitney Bowes to

mail the letter of July 31, 2006, to all retirees. After

obtaining copies of the letter from the print shop of the DSGI,

Ms. Cutchen delivered the letters and the file containing names

and addresses of retirees to Pitney Bowes to assemble.

6. The letters dated July 31, 2006, in envelopes addressed

to each retiree who carried life insurance at the time, were

delivered to the U.S. Post Office, accompanied by Ms. Cutchen.

The State of Florida first class mailing permit had been applied

to each envelope.

7. The letter dated July 31, 2006, was mailed to

Mr. Adkins at the Belair address. The return address on the

envelope containing the letter was the Division of State Group

Insurance, 4050 Esplanade Way, Ste. 215, Tallahassee, Florida,

32399-0949. The letter was not returned to the Division.

8. The letters that were returned to the DSGI were

processed by Janice Lowe, an employee of the DSGI. Each letter

that was returned to the Division of State Group Insurance was

handled in one of two ways: a) if the envelope showed a

different address on a yellow sticker applied by the US Postal

Service (USPS), the letter was re-mailed to that address; b) if

the returned envelope did not provide a different address, a

manual search of the database of the Division of Retirement was

made, a copy of the print screen showing the address in the

Retirement database was made, if different from that on the

database of the Division of State Group Insurance, and the

original envelope and letter were placed in another envelope and

mailed to the address from the Division of Retirement database.

9. A copy of each Retirement screen that was accessed by

Ms. Lowe was printed and inserted in alphabetical order in a

binder. For every person whose letter was returned, and for

which there was not another address, there would have been a

Retirement print screen. The absence of a Retirement print

screen indicates that the initial letter was not returned.

There is no retirement print screen for Mr. Adkins, indicating

that the letter to him dated July 31, 2006, was not returned to

the DSGI.

10. DMS has contracted with Convergys, Inc., to provide

human resources management services, including assisting in the

administration of employee benefits. Convergys primarily

performs these tasks through an on-line system known as “People

First.” Prior to Convergys assuming responsibility for the

administration of benefits, DSGI maintained benefits information

in the Cooperative Personnel Employment System (COPES). When

Convergys assumed responsibility for the management of benefits,

the benefits information from COPES was imported into the

Convergys People First System. People First became the system

of record for the DSGI beginning January 1, 2005. People First

and the Division of Retirement do not share databases and each

maintains its own database of names and addresses.

11. Once a year the DSGI must hold Open Enrollment for the

health program. § 110.123(3)(h)5, Fla. Stat.; Fla. Admin. Code

R. 60P-1.003(16). Open Enrollment is the period designated by

the DMS during which time eligible persons may enroll or change

coverage in any state insurance program. Prior to Open

Enrollment each year, the DSGI provides employees and retirees a

package that explains the benefits and options that are

available for the next plan year. The 2006 Open Enrollment

period, for the 2007 Plan Year, ran from September 19, 2006,

through October 18, 2006.

12. During open enrollment for Plan Year 2007, the People

First Service Center was charged with the responsibility of

sending open enrollment packages to State of Florida retirees

and other employees. People First mailed Mr. Adkins’s Open

Enrollment Package to the 2877 Belair Road E., Jacksonville,

Florida 32207 address, on September 3, 2006. The Open

Enrollment Package for Plan Year 2007 was mailed by People First

through the U.S. Post Office, first class postage paid. The

Open Enrollment Package mailed to Mr. Adkins, for 2006 Open

Enrollment, was not returned to People First. The Open

Enrollment Package mailed to Mr. Adkins on September 3, 2006,

contained Mr. Adkins’s 2007 Benefits Statement; a letter from

John Mathews, former Director of the DSGI; "Information of

Note"; a Privacy Notice; Notice Regarding Prescription Coverage;

and a 2007 Benefits Guide.

13. The Information of Note included the following

statement:

Retiree Life Insurance

For Plan Year 2007, those currently enrolled

with retiree life insurance may elect to

retain the current $4.20 premium for a

benefit of $2,500, retain the current

benefit of $10,000 for a premium of $35.79,

or cancel coverage. If no change is made

during open enrollment, participation will

continue at the $4.20 premium level.

Neither Mr. Adkins nor anyone on his behalf affirmatively

elected to continue $10,000.00 in life insurance coverage during

the enrollment period in 2006 and 2007. Because the election

was not made, at the death of Mr. Adkins, the benefit paid to

the Petitioner was $2,500.00.

14. Prior to January 1, 2007, the Life Insurance Trust

Fund was used to augment the premiums paid by retirees for life

insurance. The premium paid by the retirees did not support a

$10,000 coverage level.

15. In year 2006, the DSGI determined that the money in

the life insurance trust fund, used to augment the retiree’s

benefits from years 2000 through 2007, would not be available

after 2007. Beginning January 1, 2007 , the change in life

insurance coverage was made because the funds in the Life

Insurance Trust Fund were no longer available to augment the

premium payment required to maintain a benefit level of

$10,000.00, for a payment of $4.20 per month by the retirees.

16. In 2006, the DSGI determined that the then-current

life insurance premium of $4.20 would support a benefit of

$2,500, and that the $10,000 benefits would cost $35.79. The

notices provided by the July 31, 2006, letter and the 2006 Open

Enrollment Package were sufficient notices of the increase in

premium in that they provided a reasonable opportunity within

which to make a selection of the level of coverage.

17. On December 30, 1997, the Division of Retirement

received a written notice of change of address for Mr. Adkins.

The new address was 217 Skye Dr. W, Jacksonville, Florida 32221.

Although Mr. Adkins had changed his address with the Division of

Retirement, he did not notify the DSGI. A change of address

with one division does not automatically change addresses in the

other. The two divisions have different databases. During no

time relevant to these proceedings have the two divisions shared

databases.

18. The DSGI, through People First, used the database of

the Division of Retirement to send the 2004 Benefits Statement

as an experiment to determine whether DSGI undeliverable returns

would decrease. The same database was also used for the mailing

of the letter dated September 2, 2003. However, neither DSGI

nor People First changed its database after the 2004 Benefits

Statement was sent and subsequent information was mailed to the

DSGI address of record, based upon the COPES system. Therefore,

the letter dated July 31, 2006, and the 2006 Open Enrollment

Package for the Plan Year 2007, were mailed to the same Belair

address, the address of record.

19. A change of address for Mr. Adkins was not made in the

database of the DSGI until December 1, 2008, when People First

was provided a change of address. The only change of address

that the Petitioner has alleged, was the one provided by

Mr. Adkins to the Division of Retirement (only) in 1997.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

21. The Department of Management Services, Division of

State Group Insurance is charged with administering the “state

group insurance program,” pursuant to Section 110.123(3),

Florida Statutes (2009). As defined in Section 110.123(2)(k),

Florida Statutes (2009):

(k) "State group insurance program" or

"programs" means the package of insurance

plans offered to state officers and

employees, retired state officers and

employees, and surviving spouses of deceased

state officers and employees pursuant to

this section, including the state group

health insurance plan or plans, health

maintenance organization plans, TRICARE

supplemental insurance plans, and other

plans required or authorized by law.

22. The Department of Management Services is authorized to

establish the benefits to be provided and the contributions to

be paid by the employees and retirees participating in the State

Group Insurance Program. The relevant statute reads:

(5) Department powers and duties .-- The

department is responsible for the

administration of the state group insurance

program. The department shall initiate and

supervise the program as established by this

section and shall adopt such rules as are

necessary to perform its responsibilities.

To implement this program, the department

shall, with prior approval by the

Legislature:

(a) Determine the benefits to be provided

and the contributions to be required for the

state group insurance program. Such

determinations, whether for a contracted

plan or a self-insurance plan pursuant to

paragraph (c), do not constitute rules

within the meaning of s. 120.52 or final

orders within the meaning of s. 120.52. Any

physician's fee schedule used in the health

and accident plan shall not be available for

inspection or copying by medical providers

or other persons not involved in the

administration of the program. However, in

the determination of the design of the

program, the department shall consider

existing and complementary benefits provided

by the Florida Retirement System and the

Social Security System. Section 110.123,

Florida Statutes.

23. As provided in Section 110.123(4)(f), Florida Statutes

(2009), the Respondent cannot increase the insurance premium

deducted from retirement warrants unless requested by the

retiree. As provided in Section 110.123(4)(e), Florida Statutes

(2009), the State cannot contribute to the premium paid by

retirees that participate in the state insurance program.

24. Regarding the “Payment of premiums; contribution by

state; limitation on actions to pay and collect premiums,” the

relevant provisions of Section 110.123, Florida Statutes,

provide :

(4) (a) Except as provided in paragraph

(e) with respect to law enforcement

officers, correctional and correctional

probation officers, and firefighters,

legislative authorization through the

appropriations act is required for payment

by a state agency of any part of the premium

cost of participation in any group insurance

plan . However, the state contribution for

full-time employees or part-time permanent

employees shall continue in the respective

proportions for up to 6 months for any such

officer or employee who has been granted an

approved parental or medical leave of

absence without pay. . .

(e) No state contribution for the cost of

any part of the premium shall be made for

retirees or surviving spouses for any type

of coverage under the state group insurance

program. However, any state agency that

employs a full-time law enforcement officer,

correctional officer, or correctional

probation officer who is killed or suffers

catastrophic injury in the line of duty as

provided in s. 112.19 , or a full-time

firefighter who is killed or suffers

catastrophic injury in the line of duty as

provided in s. 112.191 , shall pay the entire

premium of the state group health insurance

plan selected for the employee's surviving

spouse until remarried, and for each

dependent child of the employee, subject to

the conditions and limitations set forth in

s. 112.19 or s. 112.191 , as applicable.

(f) Pursuant to the request of each state

officer, full-time or part-time state

employee, or retiree participating in the

state group insurance program, and upon

certification of the employing agency

approved by the department, the Chief

Financial Officer shall deduct from the

salary or retirement warrant payable to each

participant the amount so certified and

shall handle such deductions in accordance

with rules established by the department.

§ 110.123.

25. The letter dated July 31, 2006, and the Open

Enrollment Notice, advised the retired participants that if they

wished to increase the premium deduction for life insurance,

they would need to authorize the increase. The Respondent could

not increase deductions from retirement warrants without the

permission of the retiree. See § 110.123(4)(e), Fla. Stat.

(2009).

26. The evidence presented by the Respondent is sufficient

to raise the presumption that the Respondent properly mailed the

letter dated July 31, 2006, and that its contractor, People

First, mailed the 2006 Open Enrollment Package to the address of

record.

27. Regarding mailing by business entities, under Florida

law, once the business presents evidence of its routine, a

presumption arises that the routine was followed in the case in

question. Section 90.406, Florida Statutes (2009), provides:

Evidence of the routine practice of an

organization, whether corroborated or not and

regardless of the presence of eyewitnesses, is

admissible to prove that the conduct of the

organization on a particular occasion was in

conformity with the routine practice.

28. The rebuttable presumption of mailing arises upon

proof that the mail was correctly addressed, paid and posted.

Star Lakes Estates Ass'n, Inc. v. Auerbach , 656 So. 2d 271 (Fla.

3d DCA 1995); W.T. Holding, Inc. v. State Agency for Health Care

Administration , 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996);

Camerota v. Kaufman , 666 So. 2d 1042, 1045 (Fla. 4th DCA 1996).

When something is mailed by a business, it is presumed that the

ordinary course of business was followed in mailing. Brown v.

Giffen Industries, Inc. , 281 So. 2d 897 (Fla. 1973); Budget

Luxury Inns, Inc. v. Boston , 407 So. 2d 997 (Fla. 1st DCA 1982) .

Proof of general office practices satisfies the requirement of

showing due mailing. Home Ins. Co. v. C & G Sporting Goods,

Inc ., 453 So. 2d 121 (Fla. 1st DCA 1984). In the case of a

business, to expect evidence as to the individual actual act of

mailing, or as to receipt of the mailed item, would be

unreasonable. Torrey v. Torrey , 815 So. 2d 773, 775 (Fla. 4th

DCA 2002); Camerota v. Kaufman , 666 So. 2d 1042, 1045 (Fla. 4th

DCA 1996); Carol Johns v. Department of Management Services,

Division of Retirement , DOAH Case No. 03-2525, 20, fn. 4 (DOAH

September 25, 2003).

29. The established notification procedure, combined with

a copy of the People First computer report screen showing the

date the 2006 Open Enrollment Package was mailed, are sufficient

to raise the presumption of proper mailing of both documents,

with required postage, to the last address of record for

Mr. Adkins.

30. The Petitioner has not presented any competent

evidence that would rebut the presumption of mailing of the

letter dated July 31, 2006, nor of the 2006 Open Enrollment

Package mailed by People First, to the address of record for

Mr. Adkins. A denial of receipt is not itself sufficient to

overcome that presumption. W.T. Holding, Inc. v. State Agency

for Health Care Administration , 682 So. 2d 1224 (Fla. 4th DCA

1996).

31. The rules of the DSGI have long provided that the

retiree is to notify the Department of any change in address.

By Section 110.123, Florida Statutes, and Florida Administrative

Code Rule Chapter 60P, DSGI has been appointed the agent for

receipt of information regarding benefits, including address

changes. Notice to another division within the Department of

Management Services is not notice to the DSGI.

32. The evidence proves that the letter dated July 31,

2006, and the 2006 Open Enrollment Packages were duly mailed to

Mr. Adkins at the last-known address of record of the DSGI. Such

service by regular mail at law constitutes adequate and

sufficient notice. See Shawn Taylor v. Fort Walton Beach

Housing Authority , Case No. 08-6177, (DOAH September 23, 2009);

Lily-Scott Formato, D/B/A Tender Loving Childbirth, Petitioner

v. Agency for Health Care Administration , Case No. 03-1920MPI,

(DOAH September 29, 2003) (even when the Agency providing notice

believes the Petitioner has re-located to an unknown address);

Michael A. Colon v. Department of Education, Division of

Vocational Rehabilitation , Case No. 03-0623 (DOAH June 9, 2003);

Lance Powersports, Inc., and Sunstate Powersports, LLC, v. Mega

Power Sports , Case No. 08-4159 (DOAH April 6, 2009).

33. Beginning on January 1, 2000, through December 31,

2006, the retiree paid a premium of $4.20 per month for a life

insurance benefit of $10,000.00. The $4.20 premium did not

cover the cost of the life insurance for retirees, but was

augmented by excess funds in the State Life Insurance Trust

Fund.

34. In 2006, the DSGI determined that the State Life

Insurance Trust Fund could no longer support the augmentation of

the premiums paid by retirees for life insurance. The Division

set out to notify the affected retirees of the necessary

changes. The testimony of Laura Cutchen, Janice Lowe and Sandie

Wade of the DSGI, and James West of Convergys, illustrate the

lengths to which the Division and its contract provider went to

provide notice to the affected participants.

35. Once the Life Insurance Trust Fund was no long

available to augment the retirees' payment of premiums, the

retiree life insurance plan had to be self-supporting. The only

way to accomplish that was to reduce benefits to a level

supported by the current premium payments or raise the premiums

to support the then-current benefit level. The Respondent gave

the participants the choice of either. The deduction from

Mr. Adkins’s retirement warrant could not be increased without

his consent. Again, the Respondent was prohibited by statute

from taking that action. Thus, for those retirees that did not

respond to the letter and notices, the only option was to reduce

the benefit to the amount supported by the monthly premium

deduction.

36. The Administrative Law Judge has taken official

recognition of the rules of the DMS, found in Florida

Administrative Code Rule Chapter 60P. At all times relevant to

these proceedings, and currently, those rules provide that it is

the responsibility of the retiree to notify the department of a

change in address.

37. As explained by Sandie Wade, the Division of State

Group Insurance used the data base of the Division of Retirement

to send the 2004 Benefits Statement as an experiment to

determine whether DSGI undeliverable returns would decrease.

Ms. Wade testified the rate of DSGI returns was about the same

and therefore the Retirement database has not been used since as

the addresses of record for the mailing of DSGI notices.

Neither DSGI nor People First changed its database as a result

of that mailing. At the time the letter dated September 2,

2003, was mailed and when the 2004 Benefits Statement was sent,

the COPES system was the address of record for the DSGI. At the

time the letter dated September 2, 2003 was mailed and when the

2004 Benefits were mailed, the address of record for Mr. Adkins

was 2877 Belair Road E., Jacksonville, Florida 32207. It should

be noted that the 2004 Benefits Statement would have been mailed

in September 2003, prior to Open Enrollment.

38. The underlying question here is whether notice that was

provided to the Division of Retirement, in December 1997, was

notice to, or should have been notice to, the DSGI that Mr. Adkins

address was changed.

39. In Section 20.22, Florida Statutes, the DSGI is

created within the DMS, and its statutory responsibilities are

assigned in Section 110.123(3), Florida Statutes. No other

agency is given authority to act regarding state insurance

benefits. The rules promulgated by the DSGI are contained in

Rule Chapter 60P.

40. The Florida Retirement System is authorized and

managed pursuant to Section 121, Florida Statutes, and its rules

are contained in Florida Administrative Code Rule Chapters 60S,

60U, 60V, 60W and 60X.

41. There is nothing in either the rules or the statutes

that would require DSGI and Division of Retirement to share

address data bases. As Ms. Collins testified, it is not unusual

that retirees provide different addresses for benefits and

retirement. Thus, it cannot be assumed that in filing a change

of address with the Division of Retirement, a retiree also

intends to file a change of address with the DSGI.

42. The rules of the DSGI have informed the retirees to

notify the department in case of change in address, among other

things. Fla. Admin. Code R. 60P-2.005 (re-promulgated January 31,

2002); 22K-1.205. Each of the foregoing rules was promulgated

pursuant to the authority contained in Section 110.123, Florida

Statutes, and are rules of the DSGI. There is no authorization

that directs the Division of Retirement to receive and/or create a

database for DSGI.

43. An administrative agency has no power to act in a

manner that enlarges, modifies, or contravenes the authority

that the legislature has delegated to it. An administrative

agency cannot enlarge its own jurisdiction, Procacci v. State,

Dept. of Health and Rehabilitative Services , 603 So.2d 1299,

1301 (Fla. 1st DCA. 1992); nor can it create jurisdiction or

powers through an agreement. John A. McCoy Florida SNF Trust v.

State, Dept. of Health and Rehabilitative Services , 589 So.2d

351, 352 (Fla. 1st DCA. 1991).

44. Further, administrative bodies or commissions, unless

specifically created in the constitution, are creatures of

statute and derive only the power specified therein. S.T. v.

School Bd. of Seminole County , 783 So. 2d 1231 (Fla. 5th DCA

2001). Thus, an administrative agency, without common law

powers, has no inherent power to impose sanctions or grant

relief and has only that authority expressly or implicitly

granted it by statute. See Jonas v. Florida Dept. of Business

and Professional Regulation , 746 So. 2d 1261, 1262 (Fla. 3d DCA,

2000); Department of Environmental Regulation v. Puckett Oil

Co. , 577 So. 2d 988, 992 (Fla. 1st DCA 1991); Randa M. Sawann,

M.D. v. Department of Health, Board of Medicine , DOAH Case No.

05-3533 (DOAH March 7, 2006).

45. In this case, the Division of Retirement did not have

the authority to receive an address on behalf of the DSGI. The

only evidence presented is that prior to the change of address

on December 1, 2008, the only address which anyone had provided

to the DSGI for Mr. Adkins was the Belair address.

46. Through the combined testimonies of Mike Waller, Laura

Cutchen and Janice Lowe, the DSGI has established that it mailed

the notice of the change to Mr. Adkins at his address of record

at the time of mailing. Through the testimony of James West,

the DSGI has established that People First mailed the open

enrollment package for the Plan Year 2007 to Mr. Adkins at his

address of record at the time of mailing.

47. The DSGI has demonstrated that it has provided the

required notice. In this case, the DSGI is not responsible for

Mr. Adkins' not receiving the notices. The Department acted

with due diligence and fulfilled its legal obligation to provide

notice of the change to Mr. Adkins. Alta Y. Jones, Petitioner

V. Department Of Management Services , Case No. 08-5613 (DOAH

March 13, 2009).

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings of the parties, it

is

RECOMMENDED that a Final Order be entered by the Department

of Management Services, Division of State Group Insurance,

dismissing the petition in its entirety.

DONE AND ENTERED this 22nd day of January, 2010, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 22nd day of January, 2010.

COPIES FURNISHED :

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Justina Mullennix

1217 Skye Drive West

Jacksonville, Florida 32221

John Brenneis, General Counsel

Division 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.