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


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JUSTINA MULLENNIX, )

11)

12Petitioner, )

14)

15vs. ) Case No. 09-2298

20)

21DEPARTMENT OF MANAGEMENT )

25SERVICES, DIVISION OF STATE )

30GROUP INSURANCE, )

33)

34Respondent. )

36)

37RECOMMENDED ORDER

39This case came on for final hearing, by proper notice,

49before P. Michael Ruff, duly-designated Administrative Law Judge

57of the Division of Administrative Hearings. The hearing was

66conducted on November 30, 2009, in Jacksonville, Florida. The

75appearances were as follows:

79APPEARANCES

80For Petitioner: Justina Mullennix, pro se

861217 Skye Drive West

90Jacksonville, Florida 32221

93For Respondent: Sonja P. Mathews, Esquire

99Department of Management Services

103Office of the General Counsel

1084050 Esplanade Way, Suite 260

113Tallahassee, Florida 32399

116STATEMENT OF THE ISSUE

120The issue to be resolved in this proceeding concerns

129whether the Petitioner, as beneficiary of her deceased father's

138State of Florida life insurance policy, is entitled to a benefit

149of $10,000 or $2,500, and is related to how notice of a change

164in coverage amount and premium was provided to the decedent.

174PRELIMINARY STATEMENT

176Section 110.123, Florida Statutes, established the State of

184Florida's State Group Insurance Program (Program), managed by

192the Division of State Group Insurance (DSGI), an administrative

201entity within the Department of Management Services (DMS). The

210Program offers a variety of insurance plans to state officers,

220employees, retirees, and their dependents, including life

227insurance. Administrative rules applicable to the basic state

235life insurance plan are found in Florida Administrative Code

244Rule Chapter 60P.

247The Petitioner is the daughter of Maurice T. Adkins, a

257deceased State of Florida retiree. During all times relevant to

267these proceedings, Mr. Adkins was a participant in the State of

278Florida basic life insurance plan (life insurance) offered to

287all State of Florida employees and/or retirees. After the death

297of Mr. Adkins on November 29, 2008, the Petitioner was paid

308$2,500.00, as beneficiary of the life insurance policy of

318Mr. Adkins. The Petitioner disputes the denial of her request

328for payment of a $10,000.00 benefit, and contends she is owed

340$7,500.00.

342The Administrative Law Judge has taken official recognition

350of Section 110.123, Florida Statutes, Florida Administrative

357Code Rule Chapter 60P, Florida Administrative Code Rule Chapters

36660-1, and Rules 60P-2.005 (repealed 1996) and 22K-1, (repealed).

375At the hearing, the Petitioner's Composite Exhibit 1, and

384the Respondent's Exhibits 1-10, 13-22, 28, and 29 were admitted

394into evidence. Upon conclusion of the hearing, a transcript was

404ordered by the Respondent, and the parties were given 10 days

415for submission of proposed recommended orders, after filing of

424the hearing transcript and a post-hearing deposition transcript.

432The transcript was filed on December 15, 2009, and the

442transcript of the deposition of Sandie Wade was filed on

452December 16, 2009. The Proposed Recommended Orders were timely

461filed on or before December 24, 2009, and have been considered

472in the rendition of this Recommended Order.

479FINDINGS OF FACT

4821. At the time of his death on November 29, 2008, Maurice

494Adkins was covered by the state life insurance plan, as a

505retired employee of the State of Florida.

5122. The Petitioner, Justina Mullennix, is the daughter of

521Mr. Adkins and is the beneficiary of any life insurance benefits

532paid or payable from the state life insurance plan on account of

544the death of her father.

5493. Effective January 1, 2000, the coverage for retirees

558was increased to $10,000.00. The premium for this coverage was

569$4.20 per month. The DSGI prepared a letter dated July 31,

5802006, to notify the retirees that effective January 1, 2007, the

591life insurance benefit options provided to retirees would

599change. The changes allowed retirees to elect one of the

609following options:

611a. $2,500 benefit for a monthly premium of $ 4.20.

622b. $10,000 benefit for a monthly premium of $35.79.

632c. Termination of coverage.

636The letter dated July 31, 2006, informed retirees that their

646life insurance premium would remain the same, but that their

656coverage would be reduced to $2,500, unless they elected

666coverage in the amount of $10,000 and elected to pay the higher

679premium.

6804. The letter advised the retirees they could change their

690election up to and including January 19, 2007. Mike Waller, an

701employee of the DSGI, maintains benefits data for the People

711First/Division of State Group Insurance. In July 2006,

719Mr. Waller was asked to prepare a file containing the names and

731mailing addresses of all retirees who were covered by life

741insurance. Mr. Waller created the file, prepared in July 2006,

751to use in a "mail merge," to send all retirees a copy of the

765letter dated July 31, 2006. In preparing the file containing

775the mailing addresses of retirees covered by life insurance,

784Mr. Waller used the addresses of record that he maintained.

7945. In July 2006, the address of record for Mr. Adkins was

8062877 Belair Road E., Jacksonville, Florida 32207, and was

815included in the file. Mr. Waller prepared the file and on

826July 3, 2006, delivered it to Dick Barnum and Thomas Lockeridge.

837Thomas Lockeridge delivered the file to Laura Cutchen, another

846employee of the DSGI. The DSGI contracted with Pitney Bowes to

857mail the letter of July 31, 2006, to all retirees. After

868obtaining copies of the letter from the print shop of the DSGI,

880Ms. Cutchen delivered the letters and the file containing names

890and addresses of retirees to Pitney Bowes to assemble.

8996. The letters dated July 31, 2006, in envelopes addressed

909to each retiree who carried life insurance at the time, were

920delivered to the U.S. Post Office, accompanied by Ms. Cutchen.

930The State of Florida first class mailing permit had been applied

941to each envelope.

9447. The letter dated July 31, 2006, was mailed to

954Mr. Adkins at the Belair address. The return address on the

965envelope containing the letter was the Division of State Group

975Insurance, 4050 Esplanade Way, Ste. 215, Tallahassee, Florida,

98332399-0949. The letter was not returned to the Division.

9928. The letters that were returned to the DSGI were

1002processed by Janice Lowe, an employee of the DSGI. Each letter

1013that was returned to the Division of State Group Insurance was

1024handled in one of two ways: a) if the envelope showed a

1036different address on a yellow sticker applied by the US Postal

1047Service (USPS), the letter was re-mailed to that address; b) if

1058the returned envelope did not provide a different address, a

1068manual search of the database of the Division of Retirement was

1079made, a copy of the print screen showing the address in the

1091Retirement database was made, if different from that on the

1101database of the Division of State Group Insurance, and the

1111original envelope and letter were placed in another envelope and

1121mailed to the address from the Division of Retirement database.

11319. A copy of each Retirement screen that was accessed by

1142Ms. Lowe was printed and inserted in alphabetical order in a

1153binder. For every person whose letter was returned, and for

1163which there was not another address, there would have been a

1174Retirement print screen. The absence of a Retirement print

1183screen indicates that the initial letter was not returned.

1192There is no retirement print screen for Mr. Adkins, indicating

1202that the letter to him dated July 31, 2006, was not returned to

1215the DSGI.

121710. DMS has contracted with Convergys, Inc., to provide

1226human resources management services, including assisting in the

1234administration of employee benefits. Convergys primarily

1240performs these tasks through an on-line system known as “People

1250First.” Prior to Convergys assuming responsibility for the

1258administration of benefits, DSGI maintained benefits information

1265in the Cooperative Personnel Employment System (COPES). When

1273Convergys assumed responsibility for the management of benefits,

1281the benefits information from COPES was imported into the

1290Convergys People First System. People First became the system

1299of record for the DSGI beginning January 1, 2005. People First

1310and the Division of Retirement do not share databases and each

1321maintains its own database of names and addresses.

132911. Once a year the DSGI must hold Open Enrollment for the

1341health program. § 110.123(3)(h)5, Fla. Stat.; Fla. Admin. Code

1350R. 60P-1.003(16). Open Enrollment is the period designated by

1359the DMS during which time eligible persons may enroll or change

1370coverage in any state insurance program. Prior to Open

1379Enrollment each year, the DSGI provides employees and retirees a

1389package that explains the benefits and options that are

1398available for the next plan year. The 2006 Open Enrollment

1408period, for the 2007 Plan Year, ran from September 19, 2006,

1419through October 18, 2006.

142312. During open enrollment for Plan Year 2007, the People

1433First Service Center was charged with the responsibility of

1442sending open enrollment packages to State of Florida retirees

1451and other employees. People First mailed Mr. Adkins’s Open

1460Enrollment Package to the 2877 Belair Road E., Jacksonville,

1469Florida 32207 address, on September 3, 2006. The Open

1478Enrollment Package for Plan Year 2007 was mailed by People First

1489through the U.S. Post Office, first class postage paid. The

1499Open Enrollment Package mailed to Mr. Adkins, for 2006 Open

1509Enrollment, was not returned to People First. The Open

1518Enrollment Package mailed to Mr. Adkins on September 3, 2006,

1528contained Mr. Adkins’s 2007 Benefits Statement; a letter from

1537John Mathews, former Director of the DSGI; "Information of

1546Note"; a Privacy Notice; Notice Regarding Prescription Coverage;

1554and a 2007 Benefits Guide.

155913. The Information of Note included the following

1567statement:

1568Retiree Life Insurance

1571For Plan Year 2007, those currently enrolled

1578with retiree life insurance may elect to

1585retain the current $4.20 premium for a

1592benefit of $2,500, retain the current

1599benefit of $10,000 for a premium of $35.79,

1608or cancel coverage. If no change is made

1616during open enrollment, participation will

1621continue at the $4.20 premium level.

1627Neither Mr. Adkins nor anyone on his behalf affirmatively

1636elected to continue $10,000.00 in life insurance coverage during

1646the enrollment period in 2006 and 2007. Because the election

1656was not made, at the death of Mr. Adkins, the benefit paid to

1669the Petitioner was $2,500.00.

167414. Prior to January 1, 2007, the Life Insurance Trust

1684Fund was used to augment the premiums paid by retirees for life

1696insurance. The premium paid by the retirees did not support a

1707$10,000 coverage level.

171115. In year 2006, the DSGI determined that the money in

1722the life insurance trust fund, used to augment the retiree’s

1732benefits from years 2000 through 2007, would not be available

1742after 2007. Beginning January 1, 2007 , the change in life

1752insurance coverage was made because the funds in the Life

1762Insurance Trust Fund were no longer available to augment the

1772premium payment required to maintain a benefit level of

1781$10,000.00, for a payment of $4.20 per month by the retirees.

179316. In 2006, the DSGI determined that the then-current

1802life insurance premium of $4.20 would support a benefit of

1812$2,500, and that the $10,000 benefits would cost $35.79. The

1824notices provided by the July 31, 2006, letter and the 2006 Open

1836Enrollment Package were sufficient notices of the increase in

1845premium in that they provided a reasonable opportunity within

1854which to make a selection of the level of coverage.

186417. On December 30, 1997, the Division of Retirement

1873received a written notice of change of address for Mr. Adkins.

1884The new address was 217 Skye Dr. W, Jacksonville, Florida 32221.

1895Although Mr. Adkins had changed his address with the Division of

1906Retirement, he did not notify the DSGI. A change of address

1917with one division does not automatically change addresses in the

1927other. The two divisions have different databases. During no

1936time relevant to these proceedings have the two divisions shared

1946databases.

194718. The DSGI, through People First, used the database of

1957the Division of Retirement to send the 2004 Benefits Statement

1967as an experiment to determine whether DSGI undeliverable returns

1976would decrease. The same database was also used for the mailing

1987of the letter dated September 2, 2003. However, neither DSGI

1997nor People First changed its database after the 2004 Benefits

2007Statement was sent and subsequent information was mailed to the

2017DSGI address of record, based upon the COPES system. Therefore,

2027the letter dated July 31, 2006, and the 2006 Open Enrollment

2038Package for the Plan Year 2007, were mailed to the same Belair

2050address, the address of record.

205519. A change of address for Mr. Adkins was not made in the

2068database of the DSGI until December 1, 2008, when People First

2079was provided a change of address. The only change of address

2090that the Petitioner has alleged, was the one provided by

2100Mr. Adkins to the Division of Retirement (only) in 1997.

2110CONCLUSIONS OF LAW

211320. The Division of Administrative Hearings has

2120jurisdiction of the subject matter of and the parties to this

2131proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

213921. The Department of Management Services, Division of

2147State Group Insurance is charged with administering the “state

2156group insurance program,” pursuant to Section 110.123(3),

2164Florida Statutes (2009). As defined in Section 110.123(2)(k),

2172Florida Statutes (2009):

2175(k) "State group insurance program" or

"2181programs" means the package of insurance

2187plans offered to state officers and

2193employees, retired state officers and

2198employees, and surviving spouses of deceased

2204state officers and employees pursuant to

2210this section, including the state group

2216health insurance plan or plans, health

2222maintenance organization plans, TRICARE

2226supplemental insurance plans, and other

2231plans required or authorized by law.

223722. The Department of Management Services is authorized to

2246establish the benefits to be provided and the contributions to

2256be paid by the employees and retirees participating in the State

2267Group Insurance Program. The relevant statute reads:

2274(5) Department powers and duties .-- The

2281department is responsible for the

2286administration of the state group insurance

2292program. The department shall initiate and

2298supervise the program as established by this

2305section and shall adopt such rules as are

2313necessary to perform its responsibilities.

2318To implement this program, the department

2324shall, with prior approval by the

2330Legislature:

2331(a) Determine the benefits to be provided

2338and the contributions to be required for the

2346state group insurance program. Such

2351determinations, whether for a contracted

2356plan or a self-insurance plan pursuant to

2363paragraph (c), do not constitute rules

2369within the meaning of s. 120.52 or final

2377orders within the meaning of s. 120.52. Any

2385physician's fee schedule used in the health

2392and accident plan shall not be available for

2400inspection or copying by medical providers

2406or other persons not involved in the

2413administration of the program. However, in

2419the determination of the design of the

2426program, the department shall consider

2431existing and complementary benefits provided

2436by the Florida Retirement System and the

2443Social Security System. Section 110.123,

2448Florida Statutes.

245023. As provided in Section 110.123(4)(f), Florida Statutes

2458(2009), the Respondent cannot increase the insurance premium

2466deducted from retirement warrants unless requested by the

2474retiree. As provided in Section 110.123(4)(e), Florida Statutes

2482(2009), the State cannot contribute to the premium paid by

2492retirees that participate in the state insurance program.

250024. Regarding the “Payment of premiums; contribution by

2508state; limitation on actions to pay and collect premiums,” the

2519relevant provisions of Section 110.123, Florida Statutes,

2526provide :

2528(4) (a) Except as provided in paragraph

2535(e) with respect to law enforcement

2541officers, correctional and correctional

2545probation officers, and firefighters,

2549legislative authorization through the

2553appropriations act is required for payment

2559by a state agency of any part of the premium

2569cost of participation in any group insurance

2576plan . However, the state contribution for

2583full-time employees or part-time permanent

2588employees shall continue in the respective

2594proportions for up to 6 months for any such

2603officer or employee who has been granted an

2611approved parental or medical leave of

2617absence without pay. . .

2622(e) No state contribution for the cost of

2630any part of the premium shall be made for

2639retirees or surviving spouses for any type

2646of coverage under the state group insurance

2653program. However, any state agency that

2659employs a full-time law enforcement officer,

2665correctional officer, or correctional

2669probation officer who is killed or suffers

2676catastrophic injury in the line of duty as

2684provided in s. 112.19 , or a full-time

2691firefighter who is killed or suffers

2697catastrophic injury in the line of duty as

2705provided in s. 112.191 , shall pay the entire

2713premium of the state group health insurance

2720plan selected for the employee's surviving

2726spouse until remarried, and for each

2732dependent child of the employee, subject to

2739the conditions and limitations set forth in

2746s. 112.19 or s. 112.191 , as applicable.

2753(f) Pursuant to the request of each state

2761officer, full-time or part-time state

2766employee, or retiree participating in the

2772state group insurance program, and upon

2778certification of the employing agency

2783approved by the department, the Chief

2789Financial Officer shall deduct from the

2795salary or retirement warrant payable to each

2802participant the amount so certified and

2808shall handle such deductions in accordance

2814with rules established by the department.

2820§ 110.123.

282225. The letter dated July 31, 2006, and the Open

2832Enrollment Notice, advised the retired participants that if they

2841wished to increase the premium deduction for life insurance,

2850they would need to authorize the increase. The Respondent could

2860not increase deductions from retirement warrants without the

2868permission of the retiree. See § 110.123(4)(e), Fla. Stat.

2877(2009).

287826. The evidence presented by the Respondent is sufficient

2887to raise the presumption that the Respondent properly mailed the

2897letter dated July 31, 2006, and that its contractor, People

2907First, mailed the 2006 Open Enrollment Package to the address of

2918record.

291927. Regarding mailing by business entities, under Florida

2927law, once the business presents evidence of its routine, a

2937presumption arises that the routine was followed in the case in

2948question. Section 90.406, Florida Statutes (2009), provides:

2955Evidence of the routine practice of an

2962organization, whether corroborated or not and

2968regardless of the presence of eyewitnesses, is

2975admissible to prove that the conduct of the

2983organization on a particular occasion was in

2990conformity with the routine practice.

299528. The rebuttable presumption of mailing arises upon

3003proof that the mail was correctly addressed, paid and posted.

3013Star Lakes Estates Ass'n, Inc. v. Auerbach , 656 So. 2d 271 (Fla.

30253d DCA 1995); W.T. Holding, Inc. v. State Agency for Health Care

3037Administration , 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996);

3047Camerota v. Kaufman , 666 So. 2d 1042, 1045 (Fla. 4th DCA 1996).

3059When something is mailed by a business, it is presumed that the

3071ordinary course of business was followed in mailing. Brown v.

3081Giffen Industries, Inc. , 281 So. 2d 897 (Fla. 1973); Budget

3091Luxury Inns, Inc. v. Boston , 407 So. 2d 997 (Fla. 1st DCA 1982) .

3105Proof of general office practices satisfies the requirement of

3114showing due mailing. Home Ins. Co. v. C & G Sporting Goods,

3126Inc ., 453 So. 2d 121 (Fla. 1st DCA 1984). In the case of a

3141business, to expect evidence as to the individual actual act of

3152mailing, or as to receipt of the mailed item, would be

3163unreasonable. Torrey v. Torrey , 815 So. 2d 773, 775 (Fla. 4th

3174DCA 2002); Camerota v. Kaufman , 666 So. 2d 1042, 1045 (Fla. 4th

3186DCA 1996); Carol Johns v. Department of Management Services,

3195Division of Retirement , DOAH Case No. 03-2525, 20, fn. 4 (DOAH

3206September 25, 2003).

320929. The established notification procedure, combined with

3216a copy of the People First computer report screen showing the

3227date the 2006 Open Enrollment Package was mailed, are sufficient

3237to raise the presumption of proper mailing of both documents,

3247with required postage, to the last address of record for

3257Mr. Adkins.

325930. The Petitioner has not presented any competent

3267evidence that would rebut the presumption of mailing of the

3277letter dated July 31, 2006, nor of the 2006 Open Enrollment

3288Package mailed by People First, to the address of record for

3299Mr. Adkins. A denial of receipt is not itself sufficient to

3310overcome that presumption. W.T. Holding, Inc. v. State Agency

3319for Health Care Administration , 682 So. 2d 1224 (Fla. 4th DCA

33301996).

333131. The rules of the DSGI have long provided that the

3342retiree is to notify the Department of any change in address.

3353By Section 110.123, Florida Statutes, and Florida Administrative

3361Code Rule Chapter 60P, DSGI has been appointed the agent for

3372receipt of information regarding benefits, including address

3379changes. Notice to another division within the Department of

3388Management Services is not notice to the DSGI.

339632. The evidence proves that the letter dated July 31,

34062006, and the 2006 Open Enrollment Packages were duly mailed to

3417Mr. Adkins at the last-known address of record of the DSGI. Such

3429service by regular mail at law constitutes adequate and

3438sufficient notice. See Shawn Taylor v. Fort Walton Beach

3447Housing Authority , Case No. 08-6177, (DOAH September 23, 2009);

3456Lily-Scott Formato, D/B/A Tender Loving Childbirth, Petitioner

3463v. Agency for Health Care Administration , Case No. 03-1920MPI,

3472(DOAH September 29, 2003) (even when the Agency providing notice

3482believes the Petitioner has re-located to an unknown address);

3491Michael A. Colon v. Department of Education, Division of

3500Vocational Rehabilitation , Case No. 03-0623 (DOAH June 9, 2003);

3509Lance Powersports, Inc., and Sunstate Powersports, LLC, v. Mega

3518Power Sports , Case No. 08-4159 (DOAH April 6, 2009).

352733. Beginning on January 1, 2000, through December 31,

35362006, the retiree paid a premium of $4.20 per month for a life

3549insurance benefit of $10,000.00. The $4.20 premium did not

3559cover the cost of the life insurance for retirees, but was

3570augmented by excess funds in the State Life Insurance Trust

3580Fund.

358134. In 2006, the DSGI determined that the State Life

3591Insurance Trust Fund could no longer support the augmentation of

3601the premiums paid by retirees for life insurance. The Division

3611set out to notify the affected retirees of the necessary

3621changes. The testimony of Laura Cutchen, Janice Lowe and Sandie

3631Wade of the DSGI, and James West of Convergys, illustrate the

3642lengths to which the Division and its contract provider went to

3653provide notice to the affected participants.

365935. Once the Life Insurance Trust Fund was no long

3669available to augment the retirees' payment of premiums, the

3678retiree life insurance plan had to be self-supporting. The only

3688way to accomplish that was to reduce benefits to a level

3699supported by the current premium payments or raise the premiums

3709to support the then-current benefit level. The Respondent gave

3718the participants the choice of either. The deduction from

3727Mr. Adkins’s retirement warrant could not be increased without

3736his consent. Again, the Respondent was prohibited by statute

3745from taking that action. Thus, for those retirees that did not

3756respond to the letter and notices, the only option was to reduce

3768the benefit to the amount supported by the monthly premium

3778deduction.

377936. The Administrative Law Judge has taken official

3787recognition of the rules of the DMS, found in Florida

3797Administrative Code Rule Chapter 60P. At all times relevant to

3807these proceedings, and currently, those rules provide that it is

3817the responsibility of the retiree to notify the department of a

3828change in address.

383137. As explained by Sandie Wade, the Division of State

3841Group Insurance used the data base of the Division of Retirement

3852to send the 2004 Benefits Statement as an experiment to

3862determine whether DSGI undeliverable returns would decrease.

3869Ms. Wade testified the rate of DSGI returns was about the same

3881and therefore the Retirement database has not been used since as

3892the addresses of record for the mailing of DSGI notices.

3902Neither DSGI nor People First changed its database as a result

3913of that mailing. At the time the letter dated September 2,

39242003, was mailed and when the 2004 Benefits Statement was sent,

3935the COPES system was the address of record for the DSGI. At the

3948time the letter dated September 2, 2003 was mailed and when the

39602004 Benefits were mailed, the address of record for Mr. Adkins

3971was 2877 Belair Road E., Jacksonville, Florida 32207. It should

3981be noted that the 2004 Benefits Statement would have been mailed

3992in September 2003, prior to Open Enrollment.

399938. The underlying question here is whether notice that was

4009provided to the Division of Retirement, in December 1997, was

4019notice to, or should have been notice to, the DSGI that Mr. Adkins

4032address was changed.

403539. In Section 20.22, Florida Statutes, the DSGI is

4044created within the DMS, and its statutory responsibilities are

4053assigned in Section 110.123(3), Florida Statutes. No other

4061agency is given authority to act regarding state insurance

4070benefits. The rules promulgated by the DSGI are contained in

4080Rule Chapter 60P.

408340. The Florida Retirement System is authorized and

4091managed pursuant to Section 121, Florida Statutes, and its rules

4101are contained in Florida Administrative Code Rule Chapters 60S,

411060U, 60V, 60W and 60X.

411541. There is nothing in either the rules or the statutes

4126that would require DSGI and Division of Retirement to share

4136address data bases. As Ms. Collins testified, it is not unusual

4147that retirees provide different addresses for benefits and

4155retirement. Thus, it cannot be assumed that in filing a change

4166of address with the Division of Retirement, a retiree also

4176intends to file a change of address with the DSGI.

418642. The rules of the DSGI have informed the retirees to

4197notify the department in case of change in address, among other

4208things. Fla. Admin. Code R. 60P-2.005 (re-promulgated January 31,

42172002); 22K-1.205. Each of the foregoing rules was promulgated

4226pursuant to the authority contained in Section 110.123, Florida

4235Statutes, and are rules of the DSGI. There is no authorization

4246that directs the Division of Retirement to receive and/or create a

4257database for DSGI.

426043. An administrative agency has no power to act in a

4271manner that enlarges, modifies, or contravenes the authority

4279that the legislature has delegated to it. An administrative

4288agency cannot enlarge its own jurisdiction, Procacci v. State,

4297Dept. of Health and Rehabilitative Services , 603 So.2d 1299,

43061301 (Fla. 1st DCA. 1992); nor can it create jurisdiction or

4317powers through an agreement. John A. McCoy Florida SNF Trust v.

4328State, Dept. of Health and Rehabilitative Services , 589 So.2d

4337351, 352 (Fla. 1st DCA. 1991).

434344. Further, administrative bodies or commissions, unless

4350specifically created in the constitution, are creatures of

4358statute and derive only the power specified therein. S.T. v.

4368School Bd. of Seminole County , 783 So. 2d 1231 (Fla. 5th DCA

43802001). Thus, an administrative agency, without common law

4388powers, has no inherent power to impose sanctions or grant

4398relief and has only that authority expressly or implicitly

4407granted it by statute. See Jonas v. Florida Dept. of Business

4418and Professional Regulation , 746 So. 2d 1261, 1262 (Fla. 3d DCA,

44292000); Department of Environmental Regulation v. Puckett Oil

4437Co. , 577 So. 2d 988, 992 (Fla. 1st DCA 1991); Randa M. Sawann,

4450M.D. v. Department of Health, Board of Medicine , DOAH Case No.

446105-3533 (DOAH March 7, 2006).

446645. In this case, the Division of Retirement did not have

4477the authority to receive an address on behalf of the DSGI. The

4489only evidence presented is that prior to the change of address

4500on December 1, 2008, the only address which anyone had provided

4511to the DSGI for Mr. Adkins was the Belair address.

452146. Through the combined testimonies of Mike Waller, Laura

4530Cutchen and Janice Lowe, the DSGI has established that it mailed

4541the notice of the change to Mr. Adkins at his address of record

4554at the time of mailing. Through the testimony of James West,

4565the DSGI has established that People First mailed the open

4575enrollment package for the Plan Year 2007 to Mr. Adkins at his

4587address of record at the time of mailing.

459547. The DSGI has demonstrated that it has provided the

4605required notice. In this case, the DSGI is not responsible for

4616Mr. Adkins' not receiving the notices. The Department acted

4625with due diligence and fulfilled its legal obligation to provide

4635notice of the change to Mr. Adkins. Alta Y. Jones, Petitioner

4646V. Department Of Management Services , Case No. 08-5613 (DOAH

4655March 13, 2009).

4658RECOMMENDATION

4659Having considered the foregoing Findings of Fact,

4666Conclusions of Law, the evidence of record, the candor and

4676demeanor of the witnesses and the pleadings of the parties, it

4687is

4688RECOMMENDED that a Final Order be entered by the Department

4698of Management Services, Division of State Group Insurance,

4706dismissing the petition in its entirety.

4712DONE AND ENTERED this 22nd day of January, 2010, in

4722Tallahassee, Leon County, Florida.

4726S

4727P. MICHAEL RUFF

4730Administrative Law Judge

4733Division of Administrative Hearings

4737The DeSoto Building

47401230 Apalachee Parkway

4743Tallahassee, Florida 32399-3060

4746(850) 488-9675

4748Fax Filing (850) 921-6847

4752www.doah.state.fl.us

4753Filed with the Clerk of the

4759Division of Administrative Hearings

4763this 22nd day of January, 2010.

4769COPIES FURNISHED :

4772Sonja P. Mathews, Esquire

4776Department of Management Services

4780Office of the General Counsel

47854050 Esplanade Way, Suite 260

4790Tallahassee, Florida 32399

4793Justina Mullennix

47951217 Skye Drive West

4799Jacksonville, Florida 32221

4802John Brenneis, General Counsel

4806Division of Management Services

48104050 Esplanade Way

4813Tallahassee, Florida 32399-0950

4816NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4822All parties have the right to submit written exceptions within

483215 days from the date of this Recommended Order. Any exceptions

4843to this Recommended Order should be filed with the agency that

4854will issue the Final Order in this case.

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PDF
Date
Proceedings
PDF:
Date: 01/22/2010
Proceedings: Recommended Order
PDF:
Date: 01/22/2010
Proceedings: Recommended Order (hearing held November 30, 2009). CASE CLOSED.
PDF:
Date: 01/22/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/24/2009
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 12/18/2009
Proceedings: Letter to Judge Ruff from J. Mullennix regarding Proposed Recommended Order filed.
PDF:
Date: 12/16/2009
Proceedings: Deposition of Sandie Wade filed.
PDF:
Date: 12/16/2009
Proceedings: Notice of Filing Deposition Transcript (of S.Wade) filed.
PDF:
Date: 12/15/2009
Proceedings: Notice of Filing Hearing Transcript (Transcript was filed prior to Notice) filed.
Date: 12/15/2009
Proceedings: Transcript of Proceedings filed.
PDF:
Date: 12/10/2009
Proceedings: Status Report filed.
PDF:
Date: 12/10/2009
Proceedings: Notice of Taking Depositions (of S. Wade) filed.
PDF:
Date: 12/08/2009
Proceedings: Respondent's Motion for Emergency Telephone Conference filed.
PDF:
Date: 12/08/2009
Proceedings: Letter to Judge Ruff from J. Mullennix waiving rights to cross examine at deposition of final witness filed.
PDF:
Date: 12/03/2009
Proceedings: Notice of Taking Depositions (of S. Wade) filed.
PDF:
Date: 12/01/2009
Proceedings: Letter to Judge Ruff from S. Mathews regarding expected delivery date of transcript filed.
PDF:
Date: 12/01/2009
Proceedings: Certification of Notary filed.
Date: 11/30/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/20/2009
Proceedings: Respondent's Notice of Additional Witness by Telephone filed.
PDF:
Date: 11/13/2009
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 11/12/2009
Proceedings: Respondent's Motion to Allow Witnesses to Appear by Telephone filed.
PDF:
Date: 10/13/2009
Proceedings: Order Re-scheduling Hearing (hearing set for November 30, 2009; 10:30 a.m.; Jacksonville, FL).
PDF:
Date: 09/21/2009
Proceedings: Request to Reschedule Hearing Date filed.
PDF:
Date: 09/16/2009
Proceedings: Order (parties to advise by September 21, 2009, whether they are now prepared to proceed to hearing and to provide agreeable hearing dates in September and November 2009).
PDF:
Date: 09/15/2009
Proceedings: Letter to J. Mullennix from S. Mathews regarding rescheduled for hearing filed.
PDF:
Date: 08/27/2009
Proceedings: Letter to J. Mullennix from S. Matthews regarding re-scheduling of hearing filed.
PDF:
Date: 08/04/2009
Proceedings: Respondent's Motion to Take Official Recognition filed.
PDF:
Date: 08/04/2009
Proceedings: Respondent's Motion for In Camera Inspection filed.
PDF:
Date: 06/30/2009
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for August 12, 2009; 9:30 a.m.; Jacksonville and Tallahassee, FL).
PDF:
Date: 06/02/2009
Proceedings: Notice of Hearing (hearing set for August 6, 2009; 10:30 a.m.; Jacksonville, FL).
PDF:
Date: 05/06/2009
Proceedings: (Respondent`s) Response to Initial Order filed.
PDF:
Date: 05/04/2009
Proceedings: (DOAH) Initial Order w/Attachments filed.
PDF:
Date: 04/29/2009
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 04/29/2009
Proceedings: Initial Order.
PDF:
Date: 04/29/2009
Proceedings: Denial of Level II Appeal filed.
PDF:
Date: 04/29/2009
Proceedings: Agency referral

Case Information

Judge:
P. MICHAEL RUFF
Date Filed:
04/29/2009
Date Assignment:
04/29/2009
Last Docket Entry:
01/22/2010
Location:
Jacksonville, Florida
District:
Northern
Agency:
Department of Management Services
 

Counsels

Related DOAH Cases(s) (8):

Related Florida Statute(s) (8):

Related Florida Rule(s) (2):