09-006961 Camille V. Cato vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Friday, August 13, 2010.

Summary: Petitioner can not make a change to her dental insurance plan, except during a QSC event. No evidence was presented that DSGI made the inital mistake. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAMILLE V. CATO, )

)

Petitioner, )

)

vs. ) Case No. 09-6961

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the final hearing in this case was

heard before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings, on June 18, 2010, by video

teleconference, with sites in Tampa, Florida, and Tallahassee,

Florida.

APPEARANCES

For Petitioner: (No appearance)

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

Whether Petitioner was initially enrolled in her current

dental plan as a result of an error and, therefore, should be

allowed to cancel the current enrollment and retroactively

enroll in the desired plan.

PRELIMINARY STATEMENT

On October 8, 2009, Respondent issued a letter, denying

Petitioner’s Level II appeal. Petitioner timely requested a

hearing, and this matter was referred to Gerard T. York,

Presiding Officer, for an informal hearing. At the hearing, it

was determined that certain disputed material facts exist,

necessitating the assignment of an Administrative Law Judge to

resolve the issues. This matter was referred to the Division of

Administrative Hearings on December 21, 2009.

This matter was set for hearing and then continued at the

request of Petitioner. Petitioner made a second request for a

continuance, which was made less than five days before the start

of the scheduled hearing. Since no emergency was shown, it was

denied. Fla. Admin. Code R. 28-106.210.

After waiting 30 minutes, Petitioner failed to appear;

however, Respondent chose to put on its case-in-chief.

Respondent called four witnesses: Saudie Wade, benefits

coordinator for Respondent; James West, operations benefits

manager for Northgate Arinso; Janelle Vazquez, case team advisor

for Northgate Arinso; and Marie Abramo, supplemental insurance

product manager for Respondent. Respondent’s pre-marked

Exhibits 9 through 15 and 18 were admitted in evidence.

The hearing was recorded, but not transcribed. Petitioner

has not submitted a basis for her absence nor did she provide

proposals as of the date of this Recommended Order. Respondent

timely submitted its proposals on June 28, 2010.

FINDINGS OF FACT

1. As defined in Subsection 110.123(2), Florida Statutes

(2009), 1 the “state group insurance program” or “programs” offer

a variety of insurance plans to state officers, employees,

retirees, and dependents. The programs include regular benefits

that are offered to employees as part of the regular benefits

package and supplemental insurance benefits that are made

available to all employees. Unless participants opt-out, all

insurance premiums are paid through the state-sponsored pre-tax

programs. Under federal law, taxable income is reduced by the

insurance premiums paid through pre-tax programs.

2. At all times relevant to this proceeding, Petitioner

has been an active state employee, participating in the

programs.

3. Section 110.161, Florida Statutes, directs the

Department of Management Services to establish and maintain pre-

tax programs as authorized by the Internal Revenue Code (IRC) of

1986. These programs allow employers (including public

employers) to establish plans whereby employees’ taxable income

is reduced by the premium payments deducted from employees’

wages.

4. The pre-tax programs are known as “Section 125 Plans”

and “Cafeteria Plans” and are governed by 26 United States Code

Section 125.

5. Subsection 110.161(6)(a), Florida Statutes, states that

Respondent shall allow employees’ contributions to premiums for

the State Group Insurance Program administered under Section

110.123, Florida Statutes, to be paid on a pre-tax basis, unless

an employee elects not to participate.

6. Employers participating in the Section 125 pre-tax

program must implement a written plan (Cafeteria Plan) and take

deductions from an employee’s earned income for the purpose of

paying medical and dependent care expenses and, as in this case,

insurance premiums.

7. To maintain the pre-tax benefit, the employer is

required to administer the program in compliance with IRC

Section 125; the applicable federal laws, rules, and

regulations; and the employer’s written plan.

8. Florida Administrative Code Chapter 60P is part of the

State of Florida’s Cafeteria Plan.

9. Supplemental insurance is governed by Florida

Administrative Code Chapter 60P-10. Dental insurance is a

supplemental insurance, which means it is not included in

regular employee benefits, but is optional coverage provided

through the pre-tax programs.

10. Under Florida Administrative Code Rule 60P-10.005, for

employees on payroll, premiums shall be payroll deducted, and

enrollment in the pre-tax programs is automatic, unless declined

by participants.

11. Florida Administrative Code Rule 60P-10.003(1)

provides that an employee may elect to change or cancel coverage

upon the occurrence of a qualifying status change event or

during open enrollment period.

12. Through a contract with the State of Florida,

NorthGate Arinzo (formerly Convergys, Inc.) provides personnel

administrative services, including management of benefits.

13. The processing of benefits is performed through an

online system known as People First.

14. Petitioner was hired on June 26, 2009. On July 2,

2009, Petitioner enrolled in the program as a new hire.

15. Prior to July 2, 2009, Petitioner had been assigned a

People First identification number and was, therefore, able to

access the People First system.

16. On July 2, 2009, Petitioner called People First to

select benefits. Her call was routed to Customer Service

Representative Janelle Vazquez at 11:00 a.m. on that date.

17. The People First system includes notations that are

manually input by the representative that is assisting the

employee. This is known as the “e-case system.” The e-case

system also notes written correspondence that is received from

or provided to employees.

18. When an employee calls into People First to enroll in

benefits, the representative accesses the enrollment screen.

Once the employee informs the representative that he or she

wants to enroll in dental insurance, the representative accesses

the dental tab. A screen comes up that identifies the insurer

( e.g. , CompBenefits) and plan code ( e.g. , 4004, 4054). The

representative does not type in either the name of the insurer,

nor the plan code, but makes the selections from the menu that

is presented.

19. The menu shows plan names and plan codes. No plan

description of benefits are provided on the enrollment screen.

The representative does not advise the employee based upon type

of benefits. It is the responsibility of the employee to

identify the type of plan desired and to provide the

representative the plan code of the plan name.

20. Once the representative has been directed to enter the

plan name and plan code, the representative reads the selections

to the employee and then pushes the “complete transaction”

button. After the enrollment, the transaction is noted in the

e-case notes system. The notation is made by copying the

enrollment information as it appeared on the enrollment screen

and pasting it into the e-case notes.

21. On July 2, 2009, at 11:00 a.m., as instructed by

Petitioner, Vazquez enrolled Petitioner in insurance benefits,

including “CompBenefits Network Plus #4004 Employee Only.”

22. The People First system also maintains a screen that

shows when contacts are made with an employee and any related

transaction. The “Logged Changes” shows that on July 2, 2009,

at 10:58 a.m., Vazquez made changes to Petitioner’s account.

23. After the enrollment, a computer confirmation notice

was mailed on July 3, 2009, by first class mail to Petitioner.

The confirmation notice was mailed to Petitioner’s address of

record: ail View, Tarpon Springs, Florida 34688.

24. Had the confirmation notice been returned to People

First, it would have been noted in the e-case notes. There is

not a notation in Petitioner’s e-case notes that the

confirmation notice was returned.

25. The confirmation notice advises new enrollees of the

coverage selected. As to dental, it identifies the plan by name

of the provider and plan code, coverage level, and the monthly

premium.

26. The confirmation notice advises enrollees that, if the

statement does not accurately reflect changes to coverage, the

enrollee must contact the People First Service Center within

14 days of the date of the notice to make any corrections. A

toll-free telephone number is provided.

27. Prior to July 2, 2009, Petitioner had access to the

People First website, including the booklets that identified the

providers, which described the various benefits, the levels of

coverage available, and the plan codes. The booklets describing

the benefits are available on the website or the employee can

request copies to be sent by mail.

28. Regarding the CompBenefits dental coverage, the

booklet points out that there is a “Network Plus Prepaid” plan

booklet provides a full description of the benefits available

under each and the differences between the two plans. The

CompBenefits booklet also provides an explanation of the payment

of benefits and co-pays.

29. On and prior to July 2, 2009, a publication identified

as the “Benefits Guide for State of Florida Employees,”

effective January 1, 2009, was available on the website of

Respondent. The benefits guide provided a full description of

the dental benefits available and also contained an explanation

of the difference between the “Dental Prepaid Plans” and the

“Dental Preferred Provider Organization” (DPPO) offered by

CompBenefits.

30. The benefits guide also offered a comparison of the

premium payments and benefits offered under each of the plans.

On page 10 of the benefits guide is an advertisement that

compares the Network Plus Prepaid plan (includes code 4004) and

Preferred Plus DPPO plan (includes code 4054).

31. In each of the documents described in paragraphs 29

and 30, the information included the plan codes: “4004” for the

Network Plus Prepaid plan and “4054” for the Preferred Plus DPPO

plan.

32. On July 2, 2009, available to Petitioner were the

benefits guide included on the website of Respondent and the

People First website that contained the booklets that outline

the various dental plans available to state employees.

33. On July 2, 2009, Petitioner directed the People First

service representative to enroll Petitioner in the CompBenefits

4004 plan.

34. Although it was unlikely that Ms. Vasquez entered the

incorrect plan number, Petitioner failed to review the

confirmation notice within the time allotted and, therefore,

cannot make correction at this time.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter of this

proceeding in accordance with Section 120.569 and Subsection

120.57(1), Florida Statutes.

36. Respondent is an executive agency within the

Department of Management Services that is responsible for the

administration of the State Group Insurance Program.

§ 110.123(1) and (3), Fla. Stat.

37. The State Group Insurance Program is administered

pursuant to Section 110.123, Florida Statutes, and the

administrative rules contained in Florida Administrative Code

Chapter 60P.

38. At all times relevant to this proceeding, Petitioner

has been an active state employee, participating in the

programs.

39. By the promulgation of Florida Administrative Code

Chapter 60P, the State of Florida has identified the terms and

conditions of participation in the State of Florida’s pre-tax

insurance programs. Florida Administrative Code Chapter 60P-10

contains specific rules regulating participation in the

supplemental insurance plans. A participant in any pre-tax

program can make changes only as outlined in the employer’s plan

and rules. Once an employee has enrolled, the rule allows

changes during the plan year upon the occurrence of a qualifying

status change event and during open enrollment. Fla. Admin.

Code R. 60P-10.003.

40. It is a well established principle of administrative

law that, if an agency’s interpretation of the statute it is

charged with enforcing is within the range of possible and

reasonable interpretation, and it is not clearly erroneous, it

should be affirmed. Creative Choice XXV, Ltd. v. Florida

Housing Finance Corp. , 991 So. 2d 899, 901 (Fla. 1st DCA 2008);

but see Collier County Bd. of County Com’rs v. Fish and Wildlife

Conservation Com’n , 993 So. 2d 69, 75 (Fla. 2d DCA 2008). The

rules of statutory construction also apply to the interpretation

of rules. McCoy v. Hollywood Quarries, Inc. , 544 So. 2d 274,

277 (Fla. 4th DCA 1989).

41. Florida Administrative Code Rule 60P-10.002 reads as

follows:

60P-10.002 Enrollment.

(1) An employee may apply for enrollment in

a supplemental insurance plan through his or

her personnel office during:

(a) During the first sixty (60) calendar

days of state employment or a new term of

office;

(b) During open enrollment;

(c) Within thirty-one (31) days of a QSC of

losing group health coverage;

(d) Within thirty-one (31) days of a QSC of

an increase in the number of work hours for

an employee.

(2) The employing agency shall request an

effective date of coverage for enrollment in

supplemental insurance plan in accordance

with Rule 60P-10.004, F.A.C., and indicate

such date on an application along with other

required employee and agency information.

This information shall include:

(a) Employee’s and eligible dependent’s

name, social security number, birth date,

sex, employee’s home mailing address,

employment date, SAMAS organizational code,

company, product, coverage code, option

codes, and action to be taken;

(b) Contains the signature and date of the

employee and authorized signature and date

of the employing agency certifying

eligibility of the employee.

(3) The employee acknowledges that

eligibility and enrollment are governed by

the provisions of Chapter 60P-1, F.A.C.;

authorizes the State to reduce salary as

often and in amount necessary to continue

coverage; acknowledges premiums may change

from time to time; agrees to notify the

Department at the time any dependent becomes

ineligible for coverage; and agrees that all

statements made on application are complete

and true.

(4) The completed application shall be

forwarded to the Department by the employing

agency prior to the requested effective

date.

(5) Attach the original company

application, completed and signed by the

employee and certified by the employing

agency.

(6) An employee enrolled in a supplemental

insurance plan shall automatically be

enrolled in the pretax premium plan pursuant

to Chapter 60P-6, F.A.C.

42. Florida Administrative Code Rule 60P-10.003, Change in

Coverage, reads as follows:

(1) An employee may elect, change, or

cancel coverage within thirty-one (31) days

of a Qualified Status Change (QSC) event if

the change is consistent with the event

pursuant to subsection 60P-2.003(7), F.A.C.,

or during the open enrollment period.

(2) The employing agency shall request an

effective date for a change in coverage in

accordance with Rule 60P-10.004, F.A.C.

(3) The Department shall approve a coverage

change if the completed application is

submitted within thirty-one (31) calendar

days of the QSC event and the proper

documentation is provided.

(4) If an employee wants to decline

coverage after reviewing any underwritten

policy by any company, such employee must

complete and sign the required application

terminating the election prior to the end of

the month in which coverage would take

effect.

43. The general definitions applicable to Florida

Administrative Code Chapter 60P-1, include the following:

60P-1.003 Definitions

For the purpose of administering the State

Group Insurance Program, the following words

and terms shall have the meaning indicated:

* * *

(17) “Qualifying status change (QSC) event”

or “QSC event” means the change in

employment status, for subscriber or spouse,

family status or significant change in

health coverage of the employee or spouse

attributable to the spouse’s employment.

44. According to Florida Administrative Code

Rule 60P-10.003, the insurance selections made during initial

enrollment will continue during the plan year unless the

participant makes changes in coverage during open enrollment or

upon a qualifying status change event.

45. After her enrollment in the CompBenefits 4004 plan,

during Plan Year 2009, Petitioner did not report a qualifying

status change event that would allow her to make a change. The

rules do not allow for any exceptions.

46. The confirmation notice mailed to Petitioner’s address

of record provided adequate and reasonable notice to Petitioner.

47. The evidence presented is sufficient to raise the

presumption that on July 3, 2009, Respondent, through its

contractor People First, mailed the confirmation notice to the

address of record. 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.

48. Section 90.406, Florida Statutes (the Evidence Code),

states:

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.

49. Petitioner seeks to have her enrollment in a dental

plan retroactively changed based upon an alleged mistake made

during her initial enrollment on July 2, 2009.

50. On July 2, 2009, Petitioner called into People First

and was enrolled in the dental insurance in question by a

representative of People First.

51. Petitioner alleges that the representative made a

mistake in enrolling her in a plan with code “4004,” as opposed

to code “4054.” However, the evidence shows that the

representative that enrolled Petitioner used the plan code

provided by Petitioner. According to the representative, at

their work stations, the representatives do not have plan

descriptions, and the only information that is available is the

name of the insurer, level of coverage (individual or family),

and the plan code.

52. Further, according to the testimony of the

representative, she is not familiar with the description of the

benefits provided under the various plans. Therefore, the

representative could not have advised Petitioner which was an

HMO-type of insurance and which was a PPO-type of insurance.

53. On the day that Petitioner called in to select her

insurance coverage, she had access to the People First website

and to Respondent’s website. Both contained information

describing all benefits. In as much as supplemental insurance

is part of the pre-tax programs, Respondent is statutorily

mandated (§ 110.161, Fla. Stat.) to administer the pre-tax

programs in a manner that assures its compliance with the

federal requirements. One federal requirement is that the plan

complies with the plan’s own terms and conditions. In this

case, that means making changes during open enrollment or upon

the occurrence of qualifying status change event. The People

First representative followed the instructions of Respondent.

In absence of a qualifying status change event, Petitioner

cannot change her enrollment choices during the plan year.

54. Additionally, by a preponderance of evidence,

Petitioner was notified by the confirmation notice and did not

report the mistake within the time allotted.

RECOMMENDATION

Based upon the forgoing Findings of fact and Conclusion of

Law, it is RECOMMENDED that the Department of Management

Services, Division of State Group Insurance, enter a final

order, dismissing the claim of Petitioner.

DONE AND ENTERED this 13th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 13th day of August, 2010.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2009), unless otherwise indicated.

COPIES FURNISHED :

Camille V. Cato

ail View

Tarpon Springs, Florida 34688

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

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.