10-000098 Detrick Murray vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Wednesday, May 12, 2010.

Summary: Peitioner failed to cancel state-sponsored supplemental insurance when he contacted the insurance company, but not People First. He is not entitled to a refund of premiums deducted from his pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DETRICK MURRAY, )

)

Petitioner, )

)

vs. ) Case No. 10-0098

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case on April 1, 2010, by

video teleconference between sites in Miami and Tallahassee,

Florida, before Administrative Law Judge Eleanor M. Hunter of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Detrick Murray, pro se

4370 Northwest 187th Street

Miami, Florida 33055

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 is entitled to a refund from the State

of Florida Group Health Self Insurance Plan of pre-tax

supplemental insurance premiums in the amount of $47.46 or

$47.45 a month that were deducted from his pay for the 2007 and

2008 insurance plan years.

PRELIMINARY STATEMENT

In a letter dated July 21, 2009, Respondent rejected

Petitioner's Level II appeal seeking a refund of premiums

deducted from his pay for pre-tax supplemental

accident/disability insurance in 2007 and 2008. On August 12,

2009, Petitioner filed a request for mediation or an informal

hearing. Because disputed issues of material fact emerged at an

informal hearing on December 11, 2009, the case was transferred

to the Division of Administrative Hearings on January 11, 2010.

As scheduled in the notice of hearing issued on January 22,

2010, the formal hearing was held on April 1, 2010.

At the hearing, Petitioner represented himself and

testified on his own behalf. Petitioner also moved Respondent's

Exhibits 1, 2, and 5 which were received into evidence.

Respondent presented the testimony of Sandi Wade and James West,

and Respondent's Exhibits 3, 4, and 6 through 15 which were

received into evidence. At the request of Petitioner,

Respondent's late-filed Exhibit 16 was submitted and received

into evidence on April 6, 2010. Proposed Recommended Orders

were filed by Respondent on April 28, 2010, and by Petitioner on

May 4, 2010. The parties did not request a transcript of the

proceedings. Based on all of the evidence, the following

Findings of Fact and Conclusions of Law are determined.

FINDINGS OF FACT

1. Petitioner, Detrick Murray ("Petitioner" or

"Mr. Murray") was, at all times relevant to this proceeding,

employed by the Florida Department of Corrections. As a state

employee, he was given the option to participate in a pre-tax

supplemental accident/disability insurance plan. Benefits,

including insurance plans, are administered by a private

contractor, Convergys, through a project called "People First,"

operated on behalf of Respondent, Department of Management

Services, Division of State Group Insurance ("Respondent or the

Division").

2. During the 2005 open enrollment period for the 2006

plan year, Mr. Murray elected to participate in a state-

sponsored supplemental/accidental policy offered by Colonial

Insurance Company ("Colonial").

3. The reverse side of the enrollment provided the

following information and instructions:

The enrollment form must be used to enroll

in or change coverages. No changes will be

accepted by e-mail or letter.

Enrolling in a supplemental insurance plan,

or changing options, does not automatically

stop other coverages you currently have. To

stop an existing coverage , you must place an

"S" in the box provided for that Plan on the

front of this form (Part 1). Only complete

Part 2 on the front of this form if you wish

to stop plans currently not offered.

The Supplemental Enrollment Form must be

submitted to the People First Service

Center. Enrollment changes will not occur

if forms and/or applications and the

Supplemental Company Application are

submitted directly to the supplemental

insurance company.

If you cancel or do not enroll in

supplemental insurance, you will not be able

to enroll again until the next annual open

enrollment period, unless you experience a

Qualifying Status Change.

Supplemental premiums are deducted on a pre-

tax basis.

It is your responsibility to ensure that

your enrollment selections are in effect.

Check your payroll warrants to ensure that

your deductions properly reflect your

selections. Contact the People First

Service Center immediately if these

deductions are not correct.

I understand my enrollment and/or changes

will be effective the first of the month

following a full payroll deduction. I also

understand my elections are IRREVOCABLE

until the next annual open enrollment

period, unless I have a Qualifying Status

Change as defined by the Federal Internal

Revenue Code and/or the Florida

Administrative Code. I understand that I

must request such changes within thirty-one

(31) calendar days of the Qualifying Status

Change.

4. The open enrollment period for the next year, the 2007

plan year, began on September 19, 2006, and ended on October 18,

2006. On October 14, 2006, Mr. Murray notified Colonial that he

wanted to cancel the supplemental insurance for the 2007 plan

year. He used a Colonial Request for Services form and sent it

to the Colonial Processing Center in Columbia, South Carolina.

5. In a letter dated February 14, 2007, Colonial

acknowledged receiving Mr. Murray's request to cancel the

insurance during the 2006 enrollment period, and informed him of

its receipt of an "overpayment" of $47.46 monthly beginning

January 1, 2007. Colonial directed Mr. Murray to contact his

personnel officer "which will then work through the Division to

issue your refund."

6. After the open enrollment period ended, Mr. Murray had

also contacted People First on November 14, 2006, and gave

notice of his attempt to cancel with Colonial. He was informed

that Colonial had not informed People First of the cancellation.

Mr. Murray contacted People First again on January 29, 2007,

questioning the continued payroll deductions and requesting a

refund, as Colonial had suggested. He was told that he would

have to cancel with People First during the open enrollment

period, but he could send a letter of appeal to try to get a

refund of premiums and try to cancel sooner.

7. Despite repeated contacts, requests for refunds, and

appeals to People First during 2007, Mr. Murray continued to

have premiums for supplemental insurance deducted from his pay

check. Ultimately, the Division denied his appeal.

8. Although Mr. Murray was trying to get a refund for 2007

payroll deductions, he again failed to notify People First to

cancel the insurance during the open enrollment period between

September 17, 2007, and October 19, 2007, for the 2008 plan

year. There is no evidence that Mr. Murray had a qualifying

status change, as required by federal and state law, that would

have permitted him to cancel the insurance at any time other

than during open enrollment periods for the 2007 and 2008 plan

years.

9. The enrollment period for the 2009 plan year began on

September 22, 2008, and ended on October 17, 2008. On

September 24, 2008, Mr. Murray cancelled the supplemental

insurance for the 2009 plan year by making a telephone call to a

People First representative.

10. In a late-filed exhibit produced by a manager for

Convergys at the request of Petitioner, the Division showed that

payments were made to Colonial to insure Mr. Murray through

November 24, 2008.

11. Sandi Wade, the Division's benefits administrator,

noted that Colonial should not have canceled Mr. Murray's

insurance policy. Colonial had no authority to send the letter

of February 14, 2007, incorrectly telling Mr. Murray he was

entitled to a refund. Ms. Wade's observations prompted

Mr. Murray to question what, if any, remedies he might have with

regard to Colonial's error. That issue is not and cannot be

considered in this proceeding.

12. In the absence of evidence that the Division or its

agents were notified to cancel the supplemental insurance during

open enrollment periods for 2007 and 2008, or based on a

qualifying status change, Petitioner's request for a refund of

premiums must be denied.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Section 120.569 and Subsection 120.57(1), Florida

Statutes (2009).

14. Petitioner, a full-time state employee, was eligible

to participate in the state insurance plan, and properly

enrolled during the open enrollment period in 2005 for the 2006

plan year, as provided by Florida Administrative Code Rules 60P-

10.001 and 60P-10.002.

15. Respondent is the state agency created to administer

the state group insurance program that includes supplemental

insurance plans, pursuant to Section 110.123, Florida Statutes

(2009) .

16. Section 110.123(3)(h)5., Florida Statutes (2009),

permits changes to the plans as follows:

All enrollees in a state group health

insurance plan, a TRICARE supplemental

insurance plan, or any health maintenance

organization plan have the option of

changing to any other health plan that is

offered by the state within any open

enrollment period designated by the

department. Open enrollment shall be held

at least once each calendar year.

17. Florida Administrative Code Rule 60P-10.003 also

describes the circumstances in which changes in an insurance

plan, including cancellations of policy, are permitted and

provides the following:

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.

18. Respondent, the administrator of the pre-tax program,

is required by Section 125 of the Internal Revenue Code, to

comply with the provisions set forth in Section 110.123(3)(h)5.,

Florida Statutes (2009), and Florida Administrative Code Rule

60P-10.003(1).

19. In this case, Petitioner asserts the affirmative of

the issues, that he is entitled to a refund for premiums

deducted for insurance coverage in 2007 and 2008. He,

therefore, has the burden of proving by a preponderance, or the

greater weight, of the evidence that his premiums should be

refunded based on his cancellation of the supplemental insurance

policy. Department of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health

and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

20. The evidence supports a conclusion that Petitioner did

not intend to continue coverage in the 2007 and 2008 plan years,

but he did not notify People First to cancel his coverage during

the open enrollment periods, as required by law. Because of his

failure to notify People First, Petitioner is not entitled to a

refund of his premiums from Respondent.

RECOMMENDATION

Based on the foregoing, it is recommended that the

Department of Management Services, Division of State Group

Insurnace, enter a final order denying Petitioner, Detrick

Murray, a refund of his accident/disability insurance coverage

premiums paid in 2007 and 2008.

DONE AND ENTERED this 12th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 12th day of May, 2010.

COPIES FURNISHED :

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Detrick Murray

4370 Northwest 187th Street

Miami, Florida 33055

John Brenneis, General Counsel

Division of State Group Insurance

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.