00-003841 Kenneth E. Gesser vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Monday, December 11, 2000.

Summary: State of Florida Self-Insured Group Insurance Plan does not cover LASIK eye surgery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH E. GESSER, )

)

Petitioner, )

)

vs. ) Case No. 00-3841

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE GROUP )

INSURANCE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact

hearing on October 8, 2000, in Gainesville, Florida, before the

Division of Administrative Hearings, by its duly-designated

Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Kenneth E. Gesser, pro se

Apartment D-23

4100 Southwest 20th Avenue

Gainesville, Florida 32067

For Respondent: Julia P. Forrester, Esquire

Depar tment of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

Whether Petitioner's laser in situ keratomileusis (LASIK)

surgery is a covered service for which he is entitled

payment/reimbursement under the State of Florida's Self-Insured

Group Health Insurance Program.

PRELIMINARY STATEMENT

Blue Cross and Blue Shield of Florida denied Petitioner's

request for prior approval of a LASIK procedure. Petitioner, by

a May 30, 2000, letter appealed this decision to Respondent

Division of State Group Insurance, which also denied his request,

effective July 11, 2000. Petitioner timely requested a disputed-

fact hearing pursuant to Section 120.57(1), Florida Statutes.

The case was referred to the Division of Administrative Hearings

on or about September 15, 2000.

A formal pre-hearing conference was convened on October 12,

2000, at the mutual oral request of the parties. By stipulation,

it was agreed that Petitioner could present the oral testimony of

four witnesses by telephone, with oath or affirmation of the

telephonic witnesses to be administered over the telephone by the

undersigned Administrative Law Judge. It was ordered that all

costs of the telephonic testimony were to be borne by the

Petitioner. It was further stipulated that the deposition of

Dr. Webb [sic. Cobb], already taken at the request of the

Respondent, would be admitted without objection and that the

deposition could be late-filed after formal hearing. ( See

October 16, 2000, Pre-Trial Order.)

At formal hearing on October 18, 2000, Petitioner testified

in person on his own behalf and presented, by telephone, the oral

testimony of Teresa Welch, Tana Darley, and Dr. Thomas Barnard.

Respondent presented the oral testimony of Melody Bartel. Joint

Exhibits 1-7 were admitted in evidence. Petitioner had one

exhibit marked but not admitted in evidence. Respondent had one

exhibit admitted in evidence. Respondent's Exhibit 1 (also

called Respondent's Exhibit 8) was the deposition of Dr. William

Cobb, after-filed on October 20, 2000.

A T ranscript of proceedings was filed on October 27, 2000.

Respondent's Proposed Recommended Order was timely filed on

November 16, 2000. Petitioner filed no proposal.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Petitioner

was a state employee covered under the State of Florida Self-

Insured Group Insurance Plan. The provisions of the "State

Employees' PPO Plan Group Health Insurance Plan Booklet and

Benefit Document" applies to the issues herein.

2. The State of Florida's third party administrator, Blue

Cross and Blue Shield of Florida denied prior authorization for

Petitioner's LASIK surgery.

3. The Division of State Group Insurance, which

administers the State Plan, upheld Blue Cross and Blue Shield's

denial of prior authorization by proposed agency action letter

dated July 11, 2000.

4. Petitioner timely requested a formal hearing.

5. Petitioner proceeded with LASIK surgery without prior

authorization. Petitioner here requests that charges for his

LASIK surgery be reimbursed by the State Plan.

6. LASIK surgery is a treatment in which part of the

cornea of each eye is removed and reshaped to correct myopia

(nearsightedness) or hyperopia (farsightedness).

7. Prior to his LASIK surgery, Petitioner suffered from

myopia, a refractive disorder of the eyes. Petitioner's myopia

was not the result of an accident or cataract surgery.

8. The evidence is unrefuted and substantial that

Petitioner experienced difficulty in his job because of his

vision. He had difficulty reading multiple computer screens and

documents. His difficulty was acute when shifting his gaze back

and forth from one computer screen to another or back and forth

from a document to a computer screen.

9. Petitioner's employment performance suffered as a

result of his vision problems, and he got headaches.

10. Petitioner attributed his difficulty to the inadequacy

of his vision, as corrected by glasses. He tried both bifocals

and "sophisticated bifocals," but he felt he lost considerable

peripheral vision with any glasses.

11. Petitioner consulted with two optometrists,

Dr. Douglas Jones and Dr. Thomas Barnard. Prior to the LASIK

surgery, Dr. Jones and Dr. Barnard agreed that Petitioner's

vision was functionally correct to 20/20, with glasses.

However, both suggested that LASIK surgery would be beneficial

for Petitioner. Only this information was provided with

Petitioner's authorization request to Blue Cross and Blue Shield

for prior authorization.

12. Petitioner is 50 years old and had the LASIK surgery

approximately two months prior to the formal hearing.

13. Petitioner's ability to function in his job improved

after the LASIK surgery.

14. By his testimony at formal hearing, Dr. Barnard

testified that one of Petitioner's eyes was not correctable with

glasses exactly to 20/20 but was, in fact, "20/20-", which meant

that Petitioner may have been able to read most of the letters

on the 20/20 line but may have missed one or two of them.

Nonetheless, Dr. Barnard agreed that this status or diagnosis is

considered functional.

15. Dr. Barnard also testified that any person with myopia

is going to have some loss of peripheral vision with the use of

glasses, depending on the prescription. Further, he testified

that as we age the difficulty in getting a good correction at

different distances is just something that people have to put up

with after the age of forty. Dr. Barnard has a preference for

LASIK surgery over glasses.

16. According to Dr. William Cobb, ophthalmologist, most

people with myopia benefit from LASIK surgery when it is

successful. The designation of "20/20" vision means that the

judgment of acuity of vision is made at a distance of 20 feet.

In ophthalmology, all visions are measured by 20/20, which gives

a basis for comparison. Glasses can be made to allow for acuity

of vision at any stated distance for any specific function.

Most people using a computer must have trifocals or special

lenses to use with the computer. If trifocal lenses are not

adequate, then progressive lenses can be used for multiple

focusing distances. In Dr. Cobb's opinion, Petitioner should

have been able to obtain glasses to solve his visual problems at

specific distances. LASIK surgery corrects vision in the same

functional way as glasses, in that it is performed to focus the

eyes at one specified distance.

17. The pertinent provision of the "State Employees' PPO

Plan Group Health Insurance Plan Booklet and Benefit Document"

provides:

The following services and supplies are

excluded from coverage under this health

insurance plan unless a specific exception

is noted. Exceptions may be subject to

certain coverage limitations.

* * *

11. Services and supplies for treating or

diagnosing refractive disorders (vision

errors which can be corrected with

glasses) including eye glasses, contact

lenses, or the examination for the

prescribing or fitting of eye glasses or

contact lenses, unless required because of

an accident or cataract surgery that

occurred while covered by this health

insurance plan. This health insurance plan

will cover the first pair of eye glasses or

contact lenses following an accident to the

eye or cataract surgery.

18. The Division of State Group Insurance has uniformly

interpreted this provision to exclude any payment for contact

lenses, glasses, or LASIK surgery. The only exception to the

exclusion is the stated provision for glasses or contact lenses

following cataract surgery or following an accident that

affected vision.

19. State employees may purchase supplemental insurance

that covers vision care and provides reimbursement for LASIK

surgery.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57, Florida Statutes.

21. Exclusions from coverage in insurance policies are

strictly construed against the insurer. Comprehensive Health

Ass'n v. Carmichael , 706 So. 2d 319 (Fla. 4th DCA 1997).

22. The State Plan excludes from coverage all treatments

for refractive disorders of the eyes. The only exception to the

exclusion is not relevant to the facts of this case, since the

evidence of all the health care professionals herein is

persuasive that Petitioner's vision was correctable and

functional with glasses, even though inconvenient.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Management Services,

Division of State Group Insurance, issue a final order

determining that Petitioner is not entitled to payment for LASIK

surgery and dismissing his petition.

DONE AND ENTERED this 11th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto 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 11th day of December, 2000.

COPIES FURNISHED:

Kenneth E. Gesser

Apartment D-23

4100 Southwest 20th Avenue

Gainesville, Florida 32607

Julie P. Forrester, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Bruce Hoffmann, 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.