95-002790 Susie Simone Brown vs. Division Of State Employees Insurance Status: Closed Recommended Order on Wednesday, September 6, 1995.

Summary: Petitioner denied medical coverage for expenses incurred by prematurely born child prior to effective date of family coverage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSIE SIMONE BROWN, )

)

Petitioner, )

)

)

vs. ) CASE NO. 95-2790

)

DEPARTMENT OF MANAGEMENT SERVICES )

DIVISION OF STATE EMPLOYEES' )

INSURANCE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the

Division of Administrative Hearings, held a final hearing in the above-styled

case on July 14, 1995, in Orange Park, Florida.

APPEARANCES

For Petitioner: Susie Simone Brown, Pro Se

2931 Bay Road

Orange Park, Florida 32065

For Respondent: Augustus D. Aikens, Jr.

Department of Management Services

Division of State Employees' Insurance

2002 Old St. Augustine Rd., B-12

Tallahassee, Florida 32301-4876

STATEMENT OF THE ISSUE

The issue is whether Petitioner's request for an upgrade in her insurance

coverage from individual to family status should be granted with a retro-active

effective date of October 13, 1994; the date of birth of Respondent's son.

PRELIMINARY STATEMENT

By letter dated April 27, 1995, Respondent's representative informed

Petitioner that her request that her health insurance coverage be back dated to

cover the premature birth of her son had been denied.

Petitioner sought review of Respondent's denial and, on May 31, 1995, the

matter was referred to the Division of Administrative Hearings for further

proceedings.

At the final hearing, Respondent and Petitioner entered into a stipulation

of certain factual matters. Additionally, Petitioner presented the testimony of

one witness, herself, and one composite exhibit. Respondent presented testimony

of two witnesses, and one composite exhibit.

No transcript of the final hearing was provided by the parties. Respondent

filed a proposed recommended order containing proposed findings of fact. Those

proposed findings are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner was initially employed and covered under the State

Employees' State Group Health Self Insurance Plan on July 1, 1993.

2. Petitioner selected individual coverage and completed the appropriate

forms indicating such coverage.

3. Effective January 1, 1994, Petitioner's coverage for the 1994 Plan Year

continued with individual coverage.

4. Petitioner became pregnant in April, 1994, with an estimated due date

of December 6, 1994. However, she went into premature labor on October 12,

1994, at 32 weeks gestation. Attempts to stop her labor were unsuccessful and

she delivered a son, Gavon K. Brown, by caesarean delivery on October 13, 1994.

5. On October 22, 1994, Petitioner completed the required forms to change

from individual coverage to family coverage.

6. Respondent changed Petitioner's coverage to family coverage effective

December 1, 1994.

Other Facts

7. Petitioner did not inform the personnel office at her place of state

employment, Columbia Correctional Facility in Lake City, Florida of her

pregnancy.

8. Petitioner saw a private physician in Gainesville, Florida. The

physician was concerned about Petitioner's excessive weight and referred her to

the Park Avenue Women's Center in Gainesville sometime near the end of April,

1994.

9. The Park Avenue Women's Center, associated with the University of

Florida College of Medicine, treats women with at risk pregnancies. Petitioner

was seen there by Dr. Kenneth Kelner, also a professor of the Department of

Obstetrics and Gynecology of the University of Florida College of Medicine.

10. As a registered nurse, Petitioner was aware that she was at an

increased general risk for difficulty with her pregnancy as a result of her

excessive weight.

11. On August 5, 1994, as a result of problems with getting a medical bill

paid by the State Employees' State Group Health Self Insurance Plan, Petitioner

called offices of the administrator of the Plan, Blue Cross and Blue Shield

(BCBS) in Jacksonville, Florida. In the course of her telephone conversation,

Petitioner maintains that she was told she could switch to family coverage in

order to cover expenses of her unborn child as late as 30 days prior to the

birth, estimated and expected to occur on December 6, 1994.

12. Petitioner had previously received The Benefit Payment Schedule on

July 13, 1994, which contained a warning to pregnant women policyholders that

single or individual coverage did not include coverage for a child following its

birth and that family coverage would need to be in effect prior to the month of

the child's birth to afford coverage for the child.

13. During the August 5, 1994 telephone conversation with the

representative of BCBS in Jacksonville, Petitioner inquired regarding the amount

of the monthly premium for family coverage. Petitioner was referred to the

Division of State Employees' Insurance (DSEI) and provided with that telephone

number in order to acquire coverage for her unborn child and get further

detailed information. Petitioner did not call DSEI.

14. On October 12, 1994, in the course of a routine check-up, it was

determined that Petitioner's cervix was dilated. Subsequently, Petitioner gave

birth to her son at 1 a.m. on October 13, 1994.

15. On October 13, 1994, Petitioner called the personnel office at her

place of employment with the Department of Corrections and informed that office

of the birth of her son. Although Petitioner maintains that she was told at

that time by someone in the personnel office that her son would immediately be

afforded insurance coverage, Petitioner presented no direct admissible evidence

in corroboration of this allegation and her testimony in this respect is not

credited.

16. On October 22, 1994, while sitting in the hospital lobby waiting to

visit her son, who remained in hospital care following his premature birth,

Petitioner signed the required papers and forms to change from individual to

family coverage. The forms, bearing an effective date for coverage change of

December 1, 1994, were returned to Petitioner's personnel office without an

accompanying check or other payment for any employee premium co-payment which

would have permitted a construction that an earlier coverage effective date

should have been assigned the policy change.

17. Based upon the timing of the election made by Petitioner, expenses

attributable solely to medical services received by the child prior to December

1, 1994, were not covered by the State Employees' State Group Health Self

Insurance Plan.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

19. The burden of proof, absent a statutory directive to the contrary, is

on the party asserting the affirmative of the issue of the proceeding. Antel v.

Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988);

Department of Transportation v. J.W.C. Co., Inc. 396 So. 2d 778 (Fla. 1st DCA

1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.

2d 249 (Fla. 1st DCA 1977).

20. In this proceeding, Petitioner is asserting the affirmative. She has

the burden of proving that medical expenses incurred for the care of her child

were covered by the State Health Plan or, if not, should still be paid for by

her health care insurance provider.

21. Pursuant to the pertinent rules of Respondent, medical expenses

incurred by Petitioner's child were not covered by the State Health Plan

insurance coverage selected by Petitioner. She had elected individual coverage

health insurance benefits. Therefore, on the date of the child's birth, October

13, 1994, the child could not be added as a dependent to Petitioner's medical

insurance.

22. For medical expenses attributable to the child to be covered by the

State Health Plan, Petitioner was required to elect, and be covered by, family

coverage no later than October 1, 1994, and the child was required to be added

within thirty-one days after its birth as a covered dependent.

23. Rules 60P-2.003(2) and (3), Florida Administrative Code, which govern

changes from individual coverage to family coverage provide, in pertinent part,

the following:

(2) An employee . . . having individual

coverage may apply for a change to family

coverage within thirty-one (31) calendar days

after the date of acquisition of any eligible

dependent or during in the open enrollment

period. . . .

* * *

(3) An employee . . . may begin family coverage

prior to acquiring any eligible dependents. Since

such coverage is effective the first day of any

given month, employees who will acquire eligible

dependents during the month and are desirous of

having immediate coverage of such dependents must

make application in time for a complete month's

premium to be deducted prior to the first day

of the month during which the dependent will be

acquired. Otherwise, coverage cannot be effective

on the actual date the dependent is acquired.

[Emphasis added].

24. Pursuant to the foregoing rule, an employee may elect to change his or

her health insurance from individual coverage to family coverage and add a new

born child with coverage effective on the date the child is born if the

requirements of the rule are followed, i.e., that the employee "make application

in time for a complete month's premium to be deducted prior to the first day of

the month during which the dependent will be acquired." To meet this

requirement, Petitioner should have applied for family coverage sufficiently

early to have paid a month's premium prior October 1, 1994. This she did not

do. Instead, Petitioner elected for her family coverage to begin on December 1,

1994.

25. Petitioner has contended that she was mislead by the BCBS

representative and/or the personnel office representative who had assured her of

coverage for her child. Petitioner's contention requires an examination of the

question of equitable estoppel. See Tri-State Systems v. Department of

Transportation, 500 So. 2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1041

(1987). See also Warren v. Department of Administration, 554 So. 2d 568 (Fla.

5th DCA 1989), review denied, 562 So. 2d 345 (Fla. 1990). Such consideration is

necessary in order to address whether Petitioner may have been so misled by

either the BCBS representative or personnel office representative to warrant

granting her medical coverage for her child even though she did not comply with

the requirements of Rule 60P-2.003, Florida Administrative Code.

26. Petitioner's argument that she was misled is not persuasive.

Petitioner's testimony of assurances of coverage by personnel office

representatives is not credited. Further, she did not follow the BCBS

representative's advice to call DSEI. As a nurse and as the subject of

treatment at a center for at risk pregnancies, Petitioner made a contrary choice

to wait, on the presumption that she would enjoy a normal pregnancy with the

possibility of later electing coverage which would begin December 1, 1994.

27. Based upon the foregoing, the evidence fails to prove that Respondent

should be estopped from denying medical coverage of Petitioner's child.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Management Services, Division of State

Employees' Insurance enter a Final Order dismissing Susie Simone Brown's

petition in this matter.

DONE and ENTERED in Tallahassee, Florida, this 6th day of September, 1995.

___________________________________

DON W. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the

following rulings are made on the proposed findings of fact submitted on behalf

of the parties.

Respondent's Proposed Findings

1.-24. Adopted, not verbatim.

25.-28. Rejected, unnecessary.

29.-40. Adopted by reference.

41.-42. Rejected, unnecessary.

Petitioner's Proposed Findings

Petitioner's proposed findings consisted of one paragraph requesting that

Respondent provide coverage for Petitioner's son effective on the date of his

birth, October 13, 1994. The proposed finding is rejected as not supported by

the greater weight of the evidence.

COPIES FURNISHED:

Augustus D. Aikens, Jr., Chief

Department of Management Services

Division of State Employees' Insurance

2002 Old St. Augustine Rd., B-12

Tallahassee, FL 32301-4876

Susie Simone Brown

2931 Bay Rd.

Orange Park, FL 32065

William H. Linder

Secretary

Department of Management Services

2737 Centerview Dr., Ste. 307

Tallahassee, FL 32399-0950

Paul A. Rowell

General Counsel

Department of Management Services

2737 Centerview Dr., Ste. 312

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.