99-001523 Francis Parmar vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Thursday, December 16, 1999.

Summary: Petitioner did not prove his entitlement to enrollment in the State of Florida Group Health Self Insurance Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS PARMAR, )

)

Petitioner, )

)

vs. ) Case No. 99-1523

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before

the Division of Administrative Hearings, by its duly-assigned

Administrative Law Judge, Stephen F. Dean, on June 25, 1999, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Francis Parmar, pro se

Post Office Box 88752

Atlanta, Georgia 30356

For Respondent: Jill Ghini, Assistant General Counsel

Department of Management Services

4050 Esplande Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

Although Petitioner did not identify a specific issue on

which he sought resolution, and failed to request any specific

remedy, counsel for the Respondent offered the following

interpretation of the issue: whether the Petitioner is entitled

to retroactive enrollment in the State of Florida Group Health

Self Insurance Plan for any time during the period October 16,

1997 through February 13, 1998.

PRELIMINARY STATEMENT

Petitioner filed a request for Formal Hearing which was

forwarded to the Division of Administrative Hearings. Pursuant

to notice, this cause came on for formal hearing before

Stephen F. Dean, a duly-designated Administrative Law Judge of

the Division of Administrative Hearings, on June 25, 1999, in

Tallahassee, Florida. At the hearing the Petitioner represented

himself and offered no other witnesses. Testifying on behalf of

the Respondent were Patsy Kinsey, Personnel Services Specialist

with the Department of Labor and Employment Security; Merrill

Moody, Assistant Director of the Division of State Group

Insurance; and Loraine Irvin, Senior Personnel Manager with the

Department of Management Services. Respondent introduced 6

Exhibits which were received into the record. The Petitioner

offered no exhibits. The Administrative Law Judge took official

notice of Sections 110.123, 110.203, and 110.217, Florida

Statutes, and Rules 60K-4.0021, 60K-4.003, 60P-1.003, 60P-2.002,

and 60P-2.010, Florida Administrative Code.

At the conclusion of the hearing, the Administrative Law

Judge instructed the Petitioner to provide within sixty (60) days

copies of medical bills documenting the expenses for which he

sought insurance coverage together with any proof of coverage.

A videotaped recording of the proceedings was filed on June 29,

1999. The Petitioner submitted no documentation whatsoever

following the hearing. On November 4, 1999, the Administrative

Law Judge issued an order granting the Respondent's Motion to

Close the Record, and ordered the parties to file any proposed

findings of fact no later than November 22, 1999. Respondent

filed a Proposed Recommended Order on November 22, 1999, which

has been considered.

Based upon all of the evidence, and the stipulations of the

parties, the following findings of fact and conclusions of law

are determined.

FINDINGS OF FACT

1. Petitioner was employed by the Florida Department of

Labor and Employment Security from October 16, 1997 through

February 13, 1998; and by the Department of Business and

Professional Regulation from February 20, 1998 through March 26,

1998. Respondent's Exhibits 1-6.

2. During all relevant times, the Division of State Group

Insurance was responsible for contract management and day-to-day

management of the state employee health insurance program, which

contains various insurance options. Section 110.123(3)(d),

Florida Statutes.

3. Merrill Moody, Assistant Director of the Division of

State Group Insurance (hereafter the "Division") testified.

According to his agency's interpretation of the relevant rules

and statutes, neither the Division nor an employing agency is

responsible for making certain that employees timely enroll in an

insurance plan in which they wish to subscribe. Approximately

30,000 employees per year opt not to enroll in a state insurance

plan. The state plans, like public insurance companies, require

that the enrollee file the necessary enrollment forms. Mr. Moody

testified that the Division does not waive the 60-day filing

deadline for insurance enrollment of new employees imposed by

Rule 60P-2.002, Florida Administrative Code, because to do so

would subject the Division to federal penalties, and would risk

the pre-tax status of the plan.

4. The Petitioner did not allege that he was misinformed

about what forms were required to be filed in order to enroll in

an insurance program. He also did not dispute the validity of

the 60-day enrollment period for new employees.

5. Patsy Kinsey, a Personnel Services Specialist of the

Department of Labor and Employment Security (hereafter "DLES")

testified. Although employees were not required to file a

statement declining insurance coverage when they did not wish

this benefit, she specifically remembered having discussed

insurance enrollment requirements with the Petitioner. He first

complained about his lack of insurance in May of 1998, more than

6 months after he began employment with DLES and more than 3

months after leaving that Department to begin working for the

Department of Business and Professional Regulation (hereafter

"DBPR"). Petitioner admitted to her that he had not enrolled in

an insurance plan with the State at any time during his

employment with DLES. Ms. Kinsey remembered that the Petitioner

informed her that he elected not to enroll because he had

Medicaid coverage, and did not consider the additional coverage

necessary.

6. Ms. Kinsey personally authored the June 19, 1998, letter

introduced as Respondent's Exhibit 3, for Ms. Louise Lambert's

signature. While preparing the letter, Ms. Kinsey verified with

another DLES employee, Ms. Angela Gray, that the Petitioner had

actually declined insurance coverage during his 60-day enrollment

period.

7. Mr. Parmar testified that he did not have a copy of any

form on which he claimed to have requested insurance coverage

within the first 60 days of his eligible employment with DLES.

Petitioner testified that he had filed such a form. Petitioner

also testified that he kept copies of all important documents.

Petitioner was permitted to file evidence of coverage after the

hearing as a late-filed exhibit, but did not do so.

8. The Petitioner denied having told Ms. Kinsey or anyone

at DLES that he did not wish to enroll in an insurance plan.

9. Mr. Moody testified that Petitioner received notice on

each paycheck that insurance costs were not being deducted.

Insurance cards are mailed out to all new enrollees.

10. The Petitioner's statements conflict with Ms. Kinsey's

statement that the Petitioner admitted to her that he had not

filed the enrollment form during his enrollment period, and with

the testimony of Ms. Kinsey and Mr. Moody, who each stated that

employing agencies enter enrollment information into the system

as a matter of course.

11. The Petitioner did not complain about his lack of

insurance until approximately six months after he began his full-

time with DLES, at which time he could not be covered until the

next open enrollment period.

12. The Department of Management Services (DMS) is

responsible for developing uniform rules to implement Section

110.217, Florida Statutes, regarding such issues as appointments

and reassignments.

13. According to Rule 60K-4.003(2), Florida Administrative

Code, a change in employing agencies within the Career Service

System is not considered a new appointment when not more than 30

days elapse between the separation form the first agency and the

beginning of work with the new agency. It is considered a

reassignment appointment.

14. Rule 60P-2.010(1), Florida Administrative Code, states

that "(a) change from one state agency does not constitute new

employment; therefore, enrollment or coverage eligibility does

not change."

15. Loriane Irvin, Senior Personnel Manger at DMS,

testified regarding her agency's interpretation of its rules.

She testified that according to Rules 60K-4.0021 and 60K-

4.003(2), Florida Administrative Code, Petitioner's leaving

employment with DLES and beginning employment with DBPR less than

30 days later is not considered a new appointment. Therefore,

Petitioner was not eligible to enroll after he changed jobs.

16. Merrill Moody testified regarding the interpretation of

Rule 60P-2.002(a), Florida Administrative Code. Employees are

permitted to make enrollment changes "during the first sixty (60)

calendar days of state employment or a new term of office."

Rule 60P-2.002(c), Florida Administrative Code, entitles

employees to make enrollment changes within 31 days after

experiencing a "qualifying status change of losing other group

health coverage." 1/

17. Ms. Irvin confirmed Mr. Moody's statement regarding the

Agency's interpretation of Rule 60P-2.002, Florida Administrative

Code, concerning the Petitioner's change of agencies in February

of 1998. According to the Agency's interpretation, a

reassignment neither begins an employee's term of state

employment, nor does it begin a "new term of office."

18. If the Petitioner sought insurance coverage for medical

costs he had incurred, he had to submit invoices documenting such

costs within 60 days of the hearing pursuant to the post-hearing

order. The Administrative Law Judge informed Petitioner at the

hearing that without evidence of the medical treatments rendered

and the corresponding costs incurred, a determination could not

be made as to the damage suffered by the Petitioner. 2/

19. If retroactive coverage were ordered, as a result of

this proceeding, the Petitioner would have to submit all of the

required premiums for the remainder of the year in which he had

enrolled in insurance coverage as a pre-requisite for

reimbursement. This amount would depend on whether individual or

family coverage were selected, and the premiums could exceed the

amount of reimbursement to which an insured might be entitled for

medical costs. Mr. Moody explained that not all medical

procedures are covered under any insurance plan offered by the

State, and that 100 percent of covered costs are paid according

to the plans.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Subsection 120.57(1), Florida Statues.

21. Authority to administer the plan is given to the

Division by Section 110.123, Florida Statues. Section

110.123(3)(d), Florida States, holds the Division responsible for

the day-to-day management of the State Employee Insurance

Program, including, among other things, enrollment.

22. Petitioner has the burden to show he is entitled to

coverage and establish his losses. Petitioner also must show

that he has standing under the Administrative Procedure Act which

requires Petitioner to have an injury caused by Respondent of the

type the statute is designed to protect. Ameristeel Corporation

v. Clark , 691 So. 2d 473 (Fla. 1997); Agrico Chemical Company v.

Department of Environmental Regulation , 406. So. 2d 478 (Fla. 2nd

DCA 1981), review denied sub nom; Freeport Sulphur Company v.

Agrico Chemical Company , 415 So. 2d 1359 (Fla. 1982); Fairbanks,

Inc. v. State , 635 So. 2d 58 (Fla. 1st DCA 1994).

23. Petitioner did not show that he suffered an injury due

to the Respondent's actions or inaction. Although he testified

that he incurred medical costs which he believed would have been

covered by insurance, he failed to submit any documentation of

such costs or the procedures performed. Not all procedures are

covered expenses. Petitioner would have to pay his premiums if

it were determined he was eligible for coverage. It cannot be

determined if the Petitioner suffered any monetary or other

injury.

24. The Petitioner was entitled to enroll in a state-

sponsored insurance program within 60 days of his hire date as a

full-time employee with DLES on October 16, 1997, according to

Rule 60P-2.002(1)(A), Florida Administrative Code.

25. The Petitioner did not enroll in a state-sponsored

insurance program within the first 60 days after his hire date of

October 16, 1997. The Petitioner submitted no evidence of

enrollment. The testimony of the Respondent's witnesses, along

with the Respondent's exhibits which are accepted, indicates that

the Petitioner failed to enroll for insurance coverage within the

60 day enrollment period.

26. The Petitioner was not entitled to another enrollment

period when he was reassigned to employment with DBPR on

February 20, 1998. Rules 60K-4.0021 and 4.003(2); 60P-2.002(c)

and 60P-1.003(17), Florida Administrative Code. A reassignment

appointment such as that of the Petitioner in February of 1998 is

not a new appointment. A reassignment appointment is not a

qualifying status change. Therefore, the Petitioner was not

entitled to a new enrollment period when he changed employment

from DLES to DBPR. The Petitioner did not establish any other

basis for insurance enrollment. Petitioner testified that he was

employed and requested coverage. Petitioner did not present any

documentary evidence he was covered, although he was afforded the

opportunity to do so. It is therefore concluded that Petitioner

did not request coverage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is proposed that a final order be

entered dismissing the petition and confirming the denial of

insurance coverage sought by Petitioner dating back to

October 16, 1997, and extending through February 13, 1998.

DONE AND ENTERED this 16th day of December, 1999, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeS oto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of Decemb er, 1999.

ENDNOTES

1/ Although Petitioner may have been eligible because of loss of

other group coverage, he offered no evidence regarding the date of

loss coverage.

2/ The opportunity was afforded to Petitioner to file evidence of

claims and evidence of coverage as late-filed exhibits.

Petitioner did not do so.

COPIES FURNISHED:

Francis Parmar

Post Office Box 88752

Atlanta, Georgia 30356

Jill Ghini, Assistant General Counsel

Department of Management Services

4050 Esplande Way, Suite 260

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary

Department of Management Services

4050 Esplande Way

Tallahassee, Florida 32399-0950

Paul A. Rowell, General Counsel

Department of Management Services

4050 Esplande 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.