13-003116RP Florida Community Health Action And Information Network, Inc., And Greg Mellowe vs. Financial Services Commission, Through The Office Of Insurance Regulation Status: Closed DOAH Final Order on Monday, November 4, 2013.

Summary: Petitioners will not be substantially affected by receiving the notice that Respondent has proposed to establish by rule, and thus they lack standing to maintain this proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMUNITY HEALTH ACTION

AND INFORMATION NETWORK, INC.,

AND GREG MELLOWE ,

Petitioners ,

vs. Case No. 13 - 3116RP

FINANCIAL SERVICES COMMISSION,

THROUGH THE OFFICE OF INSURANCE

REGULATION ,

Respondent .

/

FINAL ORDER

Administrative Law Judge John G. Van Laningham conducted the

final hearing in this rule challenge, which was brought pursuant

to section 120.56(2), Florida Statutes, at the Division of

Admin istrative Hearings in Tallahassee, Florida, on September 30,

2013.

APPEARANCES

For Petitioner s : Greg H. Mellowe, pro se

8679 Contoura Drive

Orlando, Florida 32810

For Respondent: Andrew Marcus, Esquire

J. Bruce Culpepper, Esquire

Stephen H. Thomas, Jr., Esquire

Office of Insurance Regulation

Larson Building, Suite 646C

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The ultimate issue in this case is whether Respondent's

proposed Florida Administrative Code Rule 69O - 149.022(3), which

would incorporate by reference Form OIR - B2 - 2112, constitutes an

invalid exercise of delegated legislative authority. Before that

issue may be reached, however, it is necessary to determine

whether Petitioners have standing to challenge the proposed rule.

PRELIMINARY STATEMENT

On August 16, 2013, Petitioners filed w ith the Division of

Administrative Hearings ("DOAH") a Petition for Administrative

Determination pursuant to section 120.56(2). Petitioners alleged

that Respondent's proposed amendment to rule 69O - 149.022, which

adds language that adopts and incorporates by reference Form OIR -

B2 - 2112, is an invalid exercise of delegated legislative

authority.

The final hearing was held on September 30, 2013, as

scheduled, with both parties present. In Petitioners' case,

Mr. Mellowe testified on behalf of himself and his e mployer,

Florida Community Health Action and Information Network, Inc.

("CHAIN"). Petitioners offered, in addition, seven exhibits,

namely Petitioners' Exhibits 2, 5b, 5c, 7a, 7b, 15, and 16, which

were received in evidence. In defense of the proposed ru le,

Respondent called its employees Eric D. Johnson and Susanne K.

Murphy as witnesses. Joint Exhibits 1 through 4 were admitted.

Before adjourning the final hearing, and with the agreement

of the parties, the undersigned established the deadline for

fi ling proposed final orders, which was October 21, 2013, and a

deadline for issuing the final order, i.e., November 11, 2013.

The final hearing T ranscript was filed on October 17, 2013. Each

party filed a proposed final order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2013 Florida Statutes.

FINDING S OF FACT

1. The Financial Services Commission ("Commission") is a

four - member collegial body consisting of the governor and

cabinet. The Office of Insurance Regulation ("Office ") is a

structural unit of the Commission. Giving rise to this case,

t he Office initiated rulemaking and made recommendations to the

Commission concerning an amendment to rule 69O - 149.022, which

would incorporate by reference Form OIR - B2 - 2112, titled "Con sumer

Notice [Regarding] The Impact of Federal Health Care Reform on

Health Plan Costs" ("Form 2112"). Whenever the Commission or the

Office engages in rulemaking, the members of the Commission serve

as the agency head. The Commission thus has the ultima te

responsibility for approving and adopting the proposed rule.

2. CHAIN is a nonprofit corporation which operates solely

within the state of Florida. CHAIN is subject to the oversight

of a voluntary board of directors. As a health - care advocacy

organiz ation, CHAIN is exempt from taxation under

section 501(c)(3) of the Internal Revenue Code and derives

its income primarily from grants and contributions. CHAIN

provides services to low - and moderate - income individuals who

lack health insurance coverage o r perceive their coverage to be

unaffordable or inadequate.

3. CHAIN provides health insurance purchased through

Florida's small - group health insurance market to each of its five

full - time employees. Greg Mellowe is a full - time employee of

CHAIN who rece ives health insurance coverage through such

employment.

4. During the 2013 regular session, the Florida L egislature

passed a bill, which the governor approved, enacting section

627.410(9), Florida Statutes. This section requires that

insurers provide to policyholders of individual and small - group

nongrandfathered plans a notice that describes the estimated

impact of the federal Patient Protection and Affordable Care Act

("PPACA") ÏÏ popularly and more commonly known as Obamacare ÏÏ on

monthly premiums. 1/ An insurer that issues a nongrandfathered

plan must give this notice one time ÏÏ when the policy is issued or

renewed on or after January 1, 2014 ÏÏ on a form established by

rule of the Commission. (A "nongrandfathered" plan is a health

insurance plan that mu st comply with all of Obamacare's

requirements. For ease of reference, such plans will be referred

to as "compliant plans.")

5. Having been directed to act, the Office commenced

rulemaking to establish the form of the notice to be sent to

persons insured under compliant, individual and small - group

plans, eventually proposing to adopt Form 2112. The Commission

approved this form at a hearing on August 6, 2013.

6. Form 211 2 fills a single, one - sided page 2/ and looks like

this:

7. CHAIN will receive the Obamacare notice when it renews

its small - group health insurance plan, or purchases a new plan,

on or after January 1, 2014.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has personal

jurisdiction in this proceeding pursuant t o sections 120.56,

120.569, and 120.57(1), Florida Statutes.

9. In administrative proceedings, standing is a matter of

subject matter jurisdiction. Abbott Labs. v. Mylan Pharms.,

Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009). To have

standing to chal lenge the validity of an administrative rule

in a proceeding before an administrative law judge, a person

must be "substantially affected" by the rule in question.

§ 120.56(1)(a), Fla. Stat. ("Any person substantially affected

by a rule or a proposed rule may seek an administrative

determination of the invalidity of the rule on the ground that

the rule is an invalid exercise of delegated legislative

authority.")

10. Generally speaking, the petitioner in a rule challenge

proceeding must show that he or s he will suffer an immediate

"injury - in - fact" within the "zone of interest" protected by the

enabling statute or by other related statutes. See, e.g. , Fla.

Medical Ass'n, Inc. v. Dep't of Prof'l Reg. , 426 So. 2d 1112,

1114 (Fla. 1st DCA 1983). To satisfy the immediacy requirement,

an injury cannot be purely speculative or conjectural. Lanoue v.

Fla. Dep't of Law Enf. , 751 So. 2d 94, 97 (Fla. 1st DCA 1999) .

The petitioner need not actually have realized the injury,

however, to have standing. In NAACP, In c. v. Florida Board of

Regents , 863 So. 2d 294, 300 (Fla. 2003), for example, the Florida

Supreme Court held that student members of the NAACP who were

genuine prospective candidates for admission to a state university

were substantially affected by rules which eliminated certain

affirmative action policies; thus, they had standing to challenge

these rules without showing "immediate and actual harm" such as

the rejection of an application for admission.

11. T here is a difference, moreover, "between the con cept

of 'substantially affected' under section 120.56(1), and

'substantial interests' under section 120.57(1)." Dep't of

Prof'l Reg., Bd. of Dentistry v. Fla. Dental Hygienist Ass'n,

Inc. , 612 So. 2d 646, 651 (Fla. 1st DCA 1993). Thus, "decisions

in lice nsing and permitting cases[, which] have made it clear

that a claim of standing by third parties based solely upon

economic interests is not sufficient unless the permitting or

licensing statute itself contemplates consideration of such

interests, or unles s standing is conferred by rule, statute, or

based on constitutional grounds[,]" are not controlling in

actions brought under section 120.56. Id. ; see also Cole Vision

Corp. v. Dep't of Bus. & Prof'l Reg. , 688 So. 2d 404, 407

(Fla. 1st DCA 1997)("[T]his c ourt has recognized that a less

demanding standard applies in a rule challenge proceeding than in

an action at law, and that the standard differs from the

'substantial interest' standard of a licensure proceeding.").

12. Potential injury to economic inter ests provides a basis

for establishing standing in a proceeding brought under section

120.56, as the court made clear in Department of Professional

Regulation, Board of Dentistry v. Florida Dental Hygienist

Association , 612 So. 2d 646 (Fla. 1st DCA 1993). There, an

association of Florida - licensed dental hygienists (the

"hygienists") challenged a rule proposed by the Board of

Dentistry (the "board") that would have made graduates of the

Alabama Dental Hygiene Program (the "ADHP") eligible to take the

licens ure examination in Florida, even though the ADHP was not

accredited by the American Dental Association. Id. at 647 - 48.

13. The issue of standing was contested. On appeal, the

board argued that the hearing officer had erred in denying its

motion to dismi ss the hygienists' petition. The court disagreed,

reasoning that, because the proposed rule would "diminish the

value" of the hygienists' allegedly superior training by allowing

"unqualified persons to enter the field," the hygienists had "a

sufficient in terest in maintaining the levels of education and

competence required for licensing to afford them standing to

challenge an unauthorized encroachment upon their practice."

Id. at 651.

14. In so ruling, the court accepted the premise that, if

the proposed rule were adopted, ADHP - trained hygienists would

take and pass the Florida licensure examination in such numbers

as to substantially affect the petitioning hygienists. It wrote:

It requires no flight of imagination to

reason that if the rule would produce a flood

of lesser - trained hygienists, presumably

available for employment for less

compensation, this would have an economic

impact on the existing pool of more highly -

trained individuals.

Id. at 649 (emphasis added).

15. The fact that the court did not consider the

hygienists' anticipated economic injury to be too speculative

teaches that, in a rule challenge context, the concept of injury -

in - fact, at least as it relates to a plausible economic harm

threatening licensees, is a relatively relaxed one. I n addition,

by ruling that dental hygienists have standing to challenge a

proposed rule in order to protect their professional and economic

interests against competition from less - qualified hygienists who

might flood the market with offers of cheap and inf erior

services, the court opened the door for others to challenge rules

that could similarly affect their professional and economic

interests. 3/

16. Reduced to a succinct legal principle, the Dental

Hygienist case holds that an association of licensed

pro fessionals has standing to challenge a proposed rule that

would have a reasonably foreseeable economic impact on existing

licensees, if events were to unfold in a manner consistent with

the petitioner's plausible concerns, especially where to deny

standing would effectively shield the challenged rule from

judicial scrutiny because then "virtually no one" would have

standing. 4/

17. Another example of economic interests being found

sufficient to confer standing to challenge a rule is Abbott

Laboratories v. M ylan Pharmaceuticals, Inc. , 15 So. 3d 642, 651

n.2 (Fla. 1st DCA 2009), where it was held that a pharmaceutical

company which makes a particular generic drug had standing to

challenge a rule that prohibited pharmacists from freely

substituting the generic drug for a brand - name version of the

product, because the rule caused the petitioner to lose sales.

18. As this Final Order was being written, the First

District Court of Appeal issued an opinion that seemingly

reflects a more restrictive view of standing to challenge a

rule than has informed previous decisions. In Office of

Insurance Regulation v. Secure Enterprises, LLC. , 2013 Fla. App.

LEXIS 16231, 38 Fla. L. Weekly D 2159 (Fla. 1st DCA Oct. 11,

2013) , 5/ the court reversed a final order invalidating ce rtain

forms that the Office had adopted by rule, which prescribed the

discounts, credits, or other reductions in the cost of homeowners

insurance that insurers must make available to policyholders who

take prescribed measures to protect their houses agains t

windstorm damage. The opponent of the forms was the manufacturer

of a product that buttresses garage doors, increasing their wind

resistance. The forms at issue did not require insurers to give

a premium discount to homeowners who strengthened their ga rage

doors against storm damage. The manufacturer contended that the

relevant statute mandates insurance price reductions for

homeowners who upgrade their garage doors, and thus that the

Office's rules and forms contravened the specific law being

implemen ted. 2013 Fla. App. LEXIS 16231 at *3 - *6.

19. As the basis for standing, the manufacturer maintained

that the insurance credit, to which it believed its customers

were statutorily entitled, effectively would lower the cost of

garage door protection syste ms and thereby increase the demand

for ÏÏ and sales of ÏÏ such products. Thus, it followed that the

absence of such a subsidy was costing the manufacturer the sales

that such a financial incentive would stimulate. Being denied

the profits from such sales, th e manufacturer argued, was an

economic injury of sufficient immediacy to confer standing to

challenge the forms at issue. Id. at *6 - *7. The court

disagreed.

20. As for the alleged lost sales, the court declared that

such harm was not the result of econo mic competition, which in

the court's view distinguished the manufacturer's situation from

those of the association of dental hygienists and the

pharmaceutical company, respectively, whose standing to challenge

rules favoring competitors rested on threaten ed economic

interests, as discussed above. Id. at *17. Moreover, reasoned

the court, because an insurance credit had never been made

available to purchasers of the manufacturer's product, the rules

and forms at issue did not eliminate an existing credit and thus

did not impair a protected economic right of the manufacturer.

Id. Finally, the court determined that, unlike the situation in

Televisual Communications, Inc. v. Department of Labor and

Employment Security , 667 So. 2d 372, 374 (Fla. 1st DCA 1995 ),

where standing was predicated on a proposed rule's collateral

regulatory effect, the challenged rules regarding insurance

credits did not in any way regulate the manufacturer's industry.

Secure Enterprises , 2013 Fla. App. LEXIS 16231 at *18.

According ly, the court concluded that the manufacturer did not

have a cognizable injury - in - fact.

21. In addition, the court held that the manufacturer's

alleged economic injury was not within the zone of interest

protected by the statute in question, which was "cl early

designed," the court explained, to protect homeowners and

insurers. Id. at *20. The court noted that while the provision

of subsidies for the purchase of certain products presumably

benefits the makers of such products, such a financial gain is

not the type of interest that the statute at issue was intended

to regulate or protect. Id. at *19 - *20.

22. The facts of Secure Enterprises are dissimilar to the

facts at hand. The logic behind Secure Enterprises , however,

finds some application here. It was, to begin, highly important

to the court in Secure Enterprises that no subsidy for the

purchase of garage door protection systems had ever been

provided. Indeed, that fact alone might have been dispositive,

for the court observed that if the Office ha d eliminated an

existing credit, then the manufacturer's argument on standing

would have been "much stronger." Id. at *17. Yet, the

manufacturer contended that the Office had done exactly that,

i.e., taken away by rule a credit which the existing statute

afforded . What the court seems to have concluded, therefore, is

that a person cannot be actually injured, for purposes of

standing, by the absence of something which he has never had (and

thus, implicitly, upon which he has neither relied nor become

depe ndent) ÏÏ at least where the something in question is the

gratuitous byproduct of governmental beneficence directed

primarily toward others, which is how the court viewed the

presumed financial benefit a supplier might derive from subsidies

for the purchase of garage door protection systems.

23. That the court deemed the subsidy a benefit intended to

protect homeowners and insurers 6/ ÏÏ but not manufacturers ÏÏ was, as

well, the key to its zone - of - interest analysis. As the court saw

it, the insurance credits we re supposed to stimulate consumer

demand, not to increase suppliers' sales. Therefore, if some

manufacturers benefited from the subsidies, that result was

merely an incidental side effect falling outside the zone of

interest which the sta tute was designed to protect.

24. In this case, in an effort to establish standing, CHAIN

proved that, as an employer which provides health insurance to

its employees under a nongrandfathered plan, it will receive Form

2112 if the proposed rule is adopted. CHAIN alleged that receipt

of this form would substantially affect CHAIN because:

[the information provided in Form 2112] will

be cited by directors, employees, creditors,

funders, and insurance agents as the

[state - ]sanctioned basis for evaluating

whether or not Flor ida CHAIN should have

retained coverage for its employees under its

current plan and/or selected and purchased

coverage under a new health

plan . . . . Petitioner [CHAIN] would have

no reasonably available access to a source of

this information other tha n the Notice, or

even any access to the methodology used to

formulate the Notice. The ramifications of

Florida CHAIN's reliance on the allegedly

invalid Notice would carry over to its 2014

plan decision in 2015 as well.

CHAIN argues that, after receivi ng notice under Form 2112, its

employees would need to spend significant time and energy

defending or justifying its decisions to purchase or renew

coverage, apparently because CHAIN's board of directors and other

interested persons would rely upon the inf ormation contained in

the notice to criticize or second - guess such decisions.

25. CHAIN contends that the widespread use of Form 2112

would cause CHAIN to expend substantial resources assisting

individuals of low and moderate income who would contact CHAI N

upon receiving the notice, apparently with questions about its

meaning or accuracy.

26. CHAIN and Mellowe assert, as an additional and

alternative basis for standing, that Form 2112 fails to contain

all of the information specified in section 627.410(9) , Florida

Statutes ÏÏ information that they, as policyholders, are allegedly

entitled to receive. Thus, they argue that the form would deny

them access to information the legislature intended them to have.

27. Mellowe alleges that he has standing in his own right

as an employee of CHAIN who "stands to be directly substantially

adversely affected" by "CHAIN's decision regarding [health] plan

purchase" should such decision be influenced by the notice given

under Form 2112.

28. For the most part, then, CH AIN and Mellowe maintain

that they will be harmed by receiving the information regarding

the estimated impact of Obamacare on monthly premiums that

Form 2112 would provide them. Thus, unlike the manufacturer in

Secure Enterprises , Petitioners here are not (for the most part)

claiming injury based upon the absence of something they want,

but rather they claim that something they do not want, when

provided in the near future as intended, will injure them. Like

the insurance credits at issue in Secure Enterp rises , however,

the mandatory notice is a function of governmental beneficence,

in that certain policyholders, including Petitioners, will

receive something (information) for which they need not ask or

pay, presumably because spreading the word about Obama care's

effects on premiums will be good for them, the public, or both.

But the policyholders here, unlike the manufacturer whose

customers would receive a credit, are the direct (and not merely

incidental) beneficiaries of the informational gift, making t hem

more akin to the homeowners in Secure Enterprises whose standing

was not at issue as none was a party.

29. Nevertheless, Petitioners have failed to demonstrate

that Form 2112 would impair a protected right not to receive

notice ÏÏ at no cost to them ÏÏ il lustrating the estimated impact of

Obamacare on monthly insurance premiums. It is not the notice,

after all, which will affect Petitioners; rather, Petitioners

will be affected by Obamacare, whose impact on premiums is merely

to be described in the notice . Moreover, receipt of the notice

will not require CHAIN or Mellowe, or any other policyholders to

whom Form 2112 will be sent, to take any action in reliance upon,

or as a result of, the notice. Recipients may disagree with,

disregard, or discard the no tice without reading it, if they

choose. Form 2112 does not, in sum, regulate, control, or govern

the conduct of any policyholders, either directly or indirectly,

and passively receiving such notice one time, for free, will not

cause a real and immediate injury.

30. To the extent Petitioners claim to worry about CHAIN's

board or others relying upon the notice given under Form 2112 in

making decisions about whether CHAIN should renew a policy or

change plans or cease providing health insurance to its

emplo yees, such concerns are highly speculative at best. For one

reason, the notice is to be given after the policyholder has

purchased a new plan or, upon renewal of existing coverage, with

the renewal premium notice, so Form 2112 generally would arrive

after the decision to purchase a particular policy had been made.

31. Second, whatever the notice says about Obamacare, the

costs, benefits, and coverage provisions of the recipient's plan

will remain exactly the same. Nothing contained in the notice

could po ssibly make a health plan cost (or cover) more or less

than it would have cost (or covered) in the absence of the

notice.

32. Finally, all compliant plans will necessarily reflect

the impact of Obamacare on monthly premiums. Thus, no matter

what the no tice says, CHAIN ÏÏ whose plan will be a compliant plan

under all circumstances ÏÏ cannot escape the impact of Obamacare on

health plan costs by changing plans. Of course, CHAIN

conceivably might elect not to purchase insurance for its

employees, and by that expedient avoid Obamacare's impact on

premiums. If that happens, however, the notice will not be to

blame. This is because, when deciding which of the available

health insurance policies are suitable and affordable, the

relevant health plan cost comparis on is not between what a plan

costs today and what a comparable plan would have cost before

Obamacare; the relevant comparison is between the costs of

competing plans.

33. Petitioners' alternative argument in support of their

standing, i.e., that Form 21 12 would deprive them of the

information required to be provided under section 627.410(9)(b),

fails because, first, like the manufacturer in Secure

Enterprises , Petitioners cannot suffer a real and immediate

injury, for purposes of standing, as a result of the absence of

something (in this instance, notice of Obamacare's impact on

premiums) that has never been provided, where the thing at issue

is essentially a free gift which can be accepted or ignored

without obligation or penalty. Further, the self - evid ent purpose

of Form 2112 is to provide the statutorily indicated information,

not to deprive the target audience of such information. This is

not a situation where the agency has refused to develop the

format for providing notice or deliberately has omitt ed required

information from the notice.

34. Indeed, Petitioners' substantive complaints about

Form 2112 are not premised on the notion that the notice

is silent about the specific effects of Obamacare which

section 627.410(9)(b) requires to be described in the notice, but

rather that the proposed notice presents the information in a

format that might put Obamacare in an unflattering light, by

focusing the recipient's attention on its costs. Nothing in

section 627.410(9)(b), however, indicates that the n otice must or

should advocate in favor of Obamacare or otherwise balance the

illustration of Obamacare's impact on monthly premiums with a

description of the supposed benefits that Obamacare affords those

who happen to be winners under the federal law.

35. Petitioners, at bottom, have failed to show that the

promulgation and use of Form 211 2 would result in a real and

immediate injury - in - fact sufficient to support standing to

maintain a proceeding under section 120.56(2).

36. Nor have Petitioners demonstr ated that the notice's

alleged potential to influence CHAIN's decisions implicates

concerns within the zone of interest that section 627.410(9) is

designed to protect. Nothing in the statute indicates that the

purpose behind it was to assist recipients of the notice in

making decisions about the purchase of insurance. The statute

was instead clearly designed to educate Florida citizens about

Obamacare, presumably to shape public opinion concerning that

controversial federal law, whose very existence remai ns, as of

this writing, a matter of intense political debate. While

information about the estimated impact of Obamacare on monthly

premiums might possibly influence some notice recipient's

decision regarding the purchase of health insurance, such a

result would be plainly incidental to the statute's purpose.

Petitioners' interest in avoiding debates and discussions with

board members and others about the CHAIN's health insurance

decisions specifically or Obamacare's impact on insurance

premiums generally is simply outside the zone of interest at

issue.

37. It is concluded, therefore, that neither CHAIN nor

Mellowe has standing to challenge Form 211 2 or the proposed rule

adopting it by reference.

38. Because Petitioners lack standing to maintain this

proc eeding, the undersigned is without jurisdiction to rule on

the merits of the rule challenge. See Abbott Labs. v. Mylan

Pharms., Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that this case is dismissed for lack of

jurisdiction.

DONE AND ORDERED this 4th day of November, 2013 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrat ive 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 Clerk of the

Division of Administrative Hearings

this 4th day of November, 2013 .

ENDNOT E S

1/ Section 627.410 provides in pertinent part as follows:

(9) For plan years 2014 and 2015,

nongrandfathered health plans for the

individual or small group market are not

subject to rate review or approval by

the office. An insurer or health maint enance

organization issuing or renewing such health

plans shall file rates and any change in

rates with the office as required by

paragraph (6)(a), but the filing and

rates are not subject to subsection (2);

paragraph (6)(b), paragraph (6)(c), or

paragraph (6)(d); or subsection (7).

(a) For each individual and small group

nongrandfathered health plan, an insurer or

health maintenance organization shall include

a notice describing or illustrating the

estimated impact of PPACA on monthly premiums

with the d elivery of the policy or contract

or, upon renewal, the premium renewal notice.

The notice must be in a format established by

rule of the commission. The format must

specify how the information required under

paragraph (b) is to be described or

illustrat ed, and may allow for specified

variations from such requirements in order to

provide a more accurate and meaningful

disclosure of the estimated impact of PPACA

on monthly premiums, as determined by the

commission. All notices shall be submitted

to the of fice for informational purposes by

September 1, 2013. The notice is required

only for the first issuance or renewal of the

policy or contract on or after January 1,

2014.

(b) The information provided in the notice

shall be based on the statewide average

premium for the policy or contract for the

bronze, silver, gold, or platinum level plan,

whichever is applicable to the policy or

contract, and provide an estimate of the

following effects of PPACA requirements:

1. The dollar amount of the premium which is

attributable to the impact of guaranteed

issuance of coverage. This estimate must

include, but is not required to itemize, the

impact of the requirement that rates be based

on factors unrelated to health status, how

the individual coverage mandate and subsidies

provided in the health insurance exchange

established in this state pursuant to PPACA

affect the impact of guaranteed issuance of

coverage, and estimated reinsurance credits.

2. The dollar amount of the premium which is

attributable to fees, t axes, and assessments.

3. For individual policies or contracts, the

dollar amount of the premium increase or

decrease from the premium that would have

otherwise been due which is attributable to

the combined impact of the requirement that

rates for age b e limited to a 3 - to - 1 ratio

and the prohibition against using gender as a

rating factor. This estimate must be

displayed for the average rates for male and

female insureds, respectively, for the

following three age categories: age 21 years

to 29 years, ag e 30 years to 54 years, and

age 55 years to 64 years.

4. The dollar amount which is attributable

to the requirement that essential health

benefits be provided and to meet the required

actuarial value for the product, as compared

to the statewide average premium for the

policy or contract for the plan issued by

that insurer or organization that has the

highest enrollment in the individual or small

group market on July 1, 2013, whichever is

applicable. The statewide average premiums

for the plan that has t he highest enrollment

must include all policyholders, including

those that have health conditions that

increase the standard premium.

(c) The office, in consultation with the

department, shall develop a summary of the

estimated impact of PPACA on monthly premiums

as contained in the notices submitted by

insurers and health maintenance

organizations, which must be available on the

respective websites of the office and

department by October 1, 2013.

(d) This subsection is repealed on March 1,

2015.

2/ A sheet of instructions is available, as well, to assist

in surers in filling out the form.

3 / The insight that economic interests can furnish the basis for

standing to challenge a proposed or adopted agency rule was not

original to the Dental Hygienist de cision. See Fla. Medical

Ass'n, Inc. v. Dep't of Prof'l Reg. , 426 So. 2d 1112, 1115 (Fla.

1st DCA 1983)(palpable economic injuries have long been

recognized as a sufficient foundation for standing); Dep't of HRS

v. Alice P. , 367 So. 2d 1045, 1052 n.2 (Fla . 1st DCA

1979)(agency's cut - off of funds for certain abortions caused

fewer women to seek abortions, which substantially affected

abortion provider whose income declined as a result of decreased

demand).

4 / "In all fairness," wrote the court, "to deny t he hygienists'

standing to challenge unauthorized actions of the Board

detrimental to their interests would produce the anomalous result

that virtually no one would have such standing. In our view,

under the facts presented here, such a result would thwar t the

purposes of [the statute authorizing challenges to proposed

rules.]" Id. at 652.

5/ The opinion in Secure Enterprises was not final as of the date

of this Final Order. The undersigned has taken the decision into

account, however, because Petition ers' standing must be

determined, and at present Secure Enterprises is the court's most

recent pronouncement on standing to maintain a rule challenge.

6/ Insurers were protected, according to the court, by the

reduced "financial exposure" from storm da mage that (presumably)

results from the widespread use of windstorm damage mitigation

systems. Because insurers must discount their prices (premiums)

to subsidize the purchase of others ' products (windstorm

protection systems), and because the insurance c redits are

supposed to reflect the actuarial value of the reduced loss

exposure attributable to windstorm damage mitigation techniques,

it is not readily apparent that insurers derive much benefit from

the arrangement.

COPIES FURNISHED:

Greg H. Mellowe

8679 Contoura Drive

Orlando, Florida 32810

Andrew Marcus, Esquire

J. Bruce Culpepper, Esquire

Stephen H. Thomas, Jr., Esquire

Office of Insurance Regulation

Larson Building, Suite 646C

200 East Gaines Street

Tallahassee, Florida 32399

Kevin M. McCarty , Commissioner

Office of Insurance Regulation

200 East Gaines Street

Tallahassee, Florida 32399 - 0305

(eServed)

Belinda Miller, General Counsel

Office of Insurance Regulation

200 East Gaines Street

Tallahassee, Florida 32399 - 0305

(eServed)

Liz Cloud, Prog ram Administrator

Bureau of Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Ta llahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florid a Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of t he notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.