12-002259 Marisol Duran vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Thursday, October 4, 2012.

Summary: Petitioner failed to demonstrate that she properly utilized the People First system to enroll in the State Group Insurance Program within 60 days of her promotion to a career service position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARISON DURAN, )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 2259

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent, )

__________ ______________________)

RECOMMENDED ORDER

A formal hearing was held in this case on September 13,

2012, by video teleconference between sites in Tallahassee and

Lauderdale Lakes, Florida, before Administrative Law Judge

Edward T. Bauer of the Division o f Admini str ative Hearings.

APPEARANCES

For Pet itioner: Marisol Duran, pro se

5628 Taylor Street, Apartment B

Hollywood, Florida 33021

For Respondent: Allison H. Deison , Esquire

Department of Managemen t Services

Office of the General Counsel

4050 Esplanade Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner is

en titled to prospective enrollment in the State Group I nsur an ce

P rogram .

PRELIMINARY STATEMENT

In a letter dated March 27 , 2012, Respondent notified

Petitioner that it had rejected her request to enroll in the

State Group Insurance Program. In relevant part, the

correspondence provided:

I am writing to let you kn ow that the

Division of State Group Insurance (DSGI) has

made a determination regarding your Level II

Appeal. You stated that you attempted to

enroll in the health insurance program

during your 60 - day new hire window and the

elections were not accepted. Consequently,

you would like to enroll now.

In response to your appeal, we requested

detailed information and records from People

first, including call notes. We reviewed

those call notes and other documentation,

including system logs.

Chapter 60P, Flor ida Administrative Code,

governs the State Group Insurance Program.

These rules limit our ability to allow

enrollment or coverage changes.

Specifically, Chapter 60P - 2 states that an

employee may apply for enrollment during the

first 60 days of employment and may then

elect, change, or cancel coverage within 31

days of a QSC event . . . if the change is

consistent with that event, or during the

open enrollment period.

On November 24, 2011, People First mailed a

New Hire package to your address of record .

This package identified that you had 60 days

from your date of hire to make any changes.

On December 23, 2011, People First mailed a

30 - day reminder to you that you had not made

any elections. The first call to the

service center regarding your benefi ts was

January 26, 2012, six days past your

enrolment window.

After carefully reviewing you appeal

documents, we must unfortunately deny your

Level II Appeal. You missed your new hire

window and you do not have a QSC event that

allows you to enroll in cov erage.

Dissatisfied with Respondent's decision, Petitioner timely

requested a formal administrative hearing. Subsequently, on June

26, 2012, Respondent referred the matter to the Division of

Administrative Hearings ("DOAH") to assign an administrative l aw

judge to conduct the final hearing.

As noted above, the final hearing was held on September 13 ,

2012, during which Petitioner testified on her own behalf and

called one other witness, Sonia Carrasco. Without objection, the

undersigned took judicial no tice of the attachments to

Petitioner's Level II appeal, copies of which were included in

Respondent's referral to DOAH and made part of the case file .

Respondent presented the testimony of James West, Jimmy Cox,

Sandie Wade, and Lauren Palumbo, and intro duced 13 exhibits,

numbered 2 - 14. At the conclusion of the proceeding, the

undersigned granted Respondent's request to extend the deadline

for the submission of proposed recommended orders to September

27, 2012.

Although a court reporter was present during the final

hearing, no transcript of the proceedings was ordered. Both

parties timely submitted proposed recommended orders, which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In or around May 2010, the F lorida Department of

Economic Opportunity hired Petitioner as an "Other Personal

Services Employment" ("OPS") worker ÏÏ a category of state

employee that that is not entitled to benefits, and, as a

consequence, does not participate in the State Group I nsur an ce

P rogram.

2. Petitioner's entitlement to benefits changed, however,

on November 22, 2011, when she was promoted to deputy clerk,

which is a career ser vice position. At or around that time,

Petitioner was informed that she had 60 days from the effectiv e

date of her promotion to enroll in any benefit plan for which

she was eligible.

3. Benefits, including insurance plans, are administered

by a private contractor, No rthgateArinso, through an online

system called "People First."

4. Following her pro motion, Petitioner , with the

assistance of her supervisor, investigated the benefit plans

available to her by accessing the "My Benefits" pages at

www.myflorida.com.

5. Subsequently, on December 13, 2011, Petitioner logged

on to the People First system w ith the intent to make her

benefit elections and complete her enrollment. 1 / Upon entering

the website, Petitioner pr operly clicked on the tab labeled

"Health & Insurance," which took her to the "Health & Insurance

Home Page." At that point, Petitioner w as presented with eight

icons from which to choose :

General Benefits Information

Go to the MyBenefits website for your

insurance options.

Your Benefits

Review your benefits and Flexible Spending

Accounts.

Insurance Companies

See contact information.

Your Dependents' Information

View and update dependents' information.

Benefits Choices

Enroll or change your benefits.

Benefit Premium History

Review your insurance.

Required Documentation

Review status of your documentation.

Benefits Materials

View a nd request insurance forms and

booklets.

6. Of the foregoing options, Petitioner correctly selected

"Benefits Choices," at which point she was navigated to a page

that offered her the ability to register any eligible

dependents. Not wishing to add any dependents, Petitioner

selected the "Go to Next Step" button, which, in turn, t ook her

to a page that listed "Current P lans." (As Peti tioner had not

previously made any elections, no health, vision, or dental

plans were listed below the tab labeled "Curre nt Plans").

7. Immediately adjacent to "Current Plans" were eleven

other tabs: Health; Flex Spend Acct; Basic Life; Optional Life;

Dental; Vision; Accident; Cancer; Disability; Intensive Care;

and Hospitalization. From these options, Petitioner first

selected "Health," which brought up a list of available health

insurance plans.

8. At that point, Petitioner chose the box next to the

Coventry Health Care individual health insurance plan.

Significantly, however, this action did not finalize

Petit ion er's selection ( as explained shortly, no choices are

processed until an employee clicks, on a subsequent web page,

the "complete enrollment" button ) .

9 . After choosing ÏÏ but not finalizing ÏÏ her health

insurance coverage, Petitioner clicked on the "De ntal" tab.

Although the undersigned credits Petitio ner's testimony that she

selected the box next to one of the available options , there is

an absence of evidence concerning the identity of the plan in

which she sought to enroll. 2 /

10. Next, Petitione r chose the "Vision" tab, which,

similar to the "Health" and "Dental" screens, produced a list of

available plans. Of the various choices, Petitioner clicked on

the box next to the Coventry Health Care individual vision plan.

11. Significantly , and as a lluded to above, benefit

elections are not finalized in the People Fi rst system until two

actions are taken: first, the rectangle labeled "Summary/Last

Step" must be selected, which leads to a screen titled "Process

Benefit Elections"; and, once taken to the "Benefits Elections

Page," the employee must click the shaded rectangle titled

"Complete Enrollment."

12. Upon the completion of these steps , a confirmation

page appears that lists the employee's name and Peo ple First

identification num ber; the pag e also reads, in pertinent part,

"Please save or print for your records . . . This is your

confirmation of benefits through the State Group Insurance

Program." Notab ly, the record is devoid of evidence that such a

confirmation page was ever generated.

13 . While Petitioner's testimony that she "checked the

boxes" next to her desired benefits plans has been credited , the

undersigned is not persuaded by the greater weight of the

evidence that Petitioner completed the process' fina l two steps

on December 1 3, 2011 , 3 / or on any other occasion prior to the

expiration of the 60 - day deadline. 4 /

14 . On or about January 26, 2012, Petitioner became

concerned that she had not received any materials concerning the

insurance plans in which she thought she had enro lled. On that

date, Petitioner telephoned the People First hotline and, at

some point during the conversation that ensued, was informed

that there was no record of any benefit elections having been

made.

CONCLUSIONS OF LAW

1 5 . DOAH has jurisdiction ov er the parties and subject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes .

1 6 . Enrollment in the state group insurance program is

governed by Florida Administrative Code Rule 60P - 2.002(1), which

provides:

(1) An employee or state o fficer may apply

for enrollment in the Health Progr am [ 5 /] . . .

(a) During the first (60) calendar days of

state employment or a new term of office ;

(b) During open enrollment;

(c) With in thirty - one (31) days of a

[qualifying status change] of losing ot her

group health coverage;

(d) Wi thin thirty - one (31) days of a

[qualifying status change] of an increase in

the number of work hours for an employee;

(e) Within thirty - one days prior to

termination of employment and before the

effective date of retireme nt.

(emphasis added).

17 . Petitioner's sole contention in this proceeding is

that she utilized People First to enroll in the State Group

insurance P rogram within 60 days of her promotion to a career

service position, and, as such, Respondent should imm ediately

plac e her in the program . As the party asserting th e

affirmative of the issue , Petitioner bears the burden of

demonstrating, by a preponderance of the evidence , that she took

the required steps ÏÏ prior to the expi ration of the 60 - day

deadline ÏÏ to make her selections . See Fla. Dep't of Transp. v.

J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981)

(holding that "the burden of proof, apart from statute, is on

the party asserting the affirmative of an issue be fore an

administrative tribunal " ); § 120.57(1)(j) ("Findings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute"); Gross v. Lyons , 763 So. 2d 276,

280 n.1 (Fla. 2000)(explaining that "[ a] preponderance of the

evidence is defined as the greater weight of the evidence . . .

or evidence that more likely than not tends to prove a certain

proposition")(internal quotations and citations omitted).

18 . Pursuant to the findings of fact co ntained herein,

Petitioner faile d to demonstrate by a greater weight of the

evidence that she correctly utilized the People First system to

enroll in any insurance plans. Accordingly, the undersigned

must recommend that Respondent enter a final order deny ing

Petitio ner's request to enroll in the State Group Insurance

P rogram.

19 . Notwithstanding the outcome of this case , the

predicament in which Petitioner currently finds herself ÏÏ i.e.,

without health, dental, or vision insurance ÏÏ can be remedied

durin g the upcoming open enrollment period. 6 / See Fla. Admin.

Code R. 60P - 2.002(1) .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED tha t the Department of Management

Services, Division of State Group Insuranc e, enter a final order

denying Petitioner's request to enroll in the State Group

Insurance Program.

DONE AND ENTERED this 4th day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

___________________________ ________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 4th day o f October , 2012 .

ENDNOTES

1 / T he People First website is n ot the only means by which an

employee may enroll in an insurance plan; a paper health

insurance election form may be used, or the employee may contact

the People First service center by telephone.

2 / During cross - examination, Petitioner admitted that she does

not recall the name of the dental plan in which she desired to

enroll.

3 / Petitioner's supervisor, Ms. Carrasco, credibly testified

that on December 13, 2011, she watched Petitioner log on to

People First and "check the box" next to the Coventry Health

Care individual health plan. At t hat point, however, Ms.

Carrasco walked away and is therefore unable to confirm that the

remaining steps were completed properly. In light of

Petitioner's shaky cross - examination testimony regarding this

particular issue ÏÏ her answers, which have not been credited,

were delivered after significant pauses, in a wavering tone of

voice, and preceded by the phrase, "I want to say" ÏÏ the lack of

corroborating evidence is fatal to her case.

4 / On or about December 22, 2011 , Respondent mailed a letter to

Pet itioner's address of record that read , in relevant part,

" Time to choose your state insurance benefits is running out!

You are eligible for outstanding insurance be nefit options

through the State. " (emphasis in original). Although it is

likely that Peti tioner received this correspondence

(Respondents' records demonstrate that the letter was mailed to

the correct address), the content of which would suggest to any

reasonable person that something was amiss, Petitioner took no

action to verify whether any selections had been processed until

January 26, 2012 ÏÏ some six days after the expiration of her

enrollment window.

5 / "Health Program," as that term is used in rule 60P - 2.002(1),

is defined as "the insurance plans offered to eligible

subscribers." Fla . Admin. Code R. 60P - 1.003(13).

6 / The open enrollment period for the 2013 plan year will begin

on October 8, 2012, and conclude on November 2, 2012. See

https://peoplefirst.myflorida.com (last accessed September 25,

2012).

COPIES FURN ISHED :

Marisol Duran

5628 Taylor Street, Apartment B

Hollywood, Florida 33021

Allison H. Deison, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way

Tallahassee, Florida 32399

Jason Dimitris, General Counsel

Depa rtment of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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 issu e the Final Order in this case.