13-004644 Gerald Kreucher vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Thursday, March 13, 2014.

Summary: Petitioner entitled to a refund of excess premium where age banding not identified as a qualifying status change and confirmation of benefits showed one premium for benefit year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD KREUCHER ,

Petitioner ,

vs. Case No. 13 - 4644

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE ,

Respondent .

/

RECOMMENDED O RDER

On February 6, 2014, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings conducted a

hearing pursuant to section 120.57(1), Florida Statutes (2013),

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gerald Kreu cher, pro se

1905 South Magnolia Drive

Tallahassee, Florida 32301

For Respondent: Veronica Donnelly, Esquire

Department of Management Services

4050 Esplanade Way, Suite 60

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue to be determined in this proceeding is whether

Petitioner is entitled to a refund of premiums paid for life

insurance coverage during the 2013 plan year.

PRELIMINARY STATEMENT

On September 10, 2013, Petitioner, Gerald Kreucher, wrote to

the People Fi rst Service Center and requested a refund of those

funds deducted from his pay that reflected an increase in the

premium for additional life insurance beginning in March 2013.

His request was denied, and, pursuant to the instructions given,

Petitioner fil ed a ÐLevel II appealÑ to the Division of State

Group Insurance (the Division).

On October 11, 2013, the Div ision denied PetitionerÓs Level -

II appeal. On November 6, 2013, Petitioner filed a request for

hearing with respect to the denial and on November 26, 2013, the

matter was referred to the Division of Administrative Hearings

for the assignment of an administrative law judge.

The case was assigned originally to Administrative Law Judge

Diane Cleavinger, who on December 16, 2013, scheduled t he hearing

t o commence February 6, 2014, in Tallahassee. Shortly before the

hearing, the case was transferred to Administrative Law Judge

Lisa Nelson and the case commenced as scheduled.

At hearing, Petitioner testified on his own behalf and

PetitionerÓs Exhibits num bered 1 - 10 were admitted without

objection. Respondent presented the testimony of Lindsay Lichti

and RespondentÓs Exhibits numbered 1 - 11 were admitted into

evidence without objection. The proceedings were recorded but no

transcript was ordered. Both par ties filed their Proposed

Recommended Orders on February 17, 2014, which have been

carefully considered in the preparation of this Recommended

Order.

FINDING S OF FACT

1. Petitioner is a state employee with over 30 years of

public employment.

2. Responde nt, Department of Management Services, Division

of State Group Insurance (Division), is the state agency charged

with administering the state group insurance program. Pursuant

to section 110.123(5), Florida Statutes, its duties include

determining the ben efits to be provided to state employees and

the contributions to be required for the state group insurance

program. The Department of Management Services is also

authorized , pursuant to section 110.161 , to administer a pre - tax

benefits program that allows employeesÓ contributions to premiums

be paid on a pre - tax basis, and to provide for the payment of

such premiums th r ough a pre - tax payroll procedure.

3. Among the insurance products available to state

employees are group health insurance, basic group ter m life

insurance, and optional group term life insurance. At the crux

of this case is the premium to be paid for group term life

insurance.

4. Basic insurance is noncontributory insurance (meaning

the employer pays the premium) for full - time employees an d is

contributory insurance (meaning the employee pays the premium)

for part - time employees. Optional insurance is contributory

insurance for all employees .

5. At the time relevant to this proceeding, career service,

university system support staff, seni or management, and select

exempt service employees, as well as active state senators and

representatives, were entitled to a basic group term life

insurance benefit of $25,000. For retired vested legislators,

the basic group term life benefit was $150,000 , and for retirees

who were not vested legislators, the benefit was either $2,500 or

$10,000.

6. Optional group term life insurance was also available to

active employees enrolled in basic term life. This insurance

coverage was available for purchase up to seven times an

employeeÓs annual earnings, to a maximum of $1,000,000. Both

basi c and optional life insurance are provided through Minnesota

Life.

7. The opportunity to enroll in or make changes to

insurance coverage occurs during open enrollment each year.

8. During open enrollment in 2012, Petition er made

selections for the 2013 plan year, which corresponds with the

calendar year. Among his selections, Petitioner opted to

continue his optional life insurance coverage at four times his

annual sala ry.

9. To make his selection, Petitioner used the People First

System. The Minnesota Life screen shot for determining the

premium for coverage contains the following information:

Determining the cost

To determine the new monthly cost of changing your

Opt ional Life coverage, please follow the example

below:

How is your monthly premium calculated?

1. Your annual earnings =

Basic amount

2. Cho o se the salary multiple of one =

to seven times your annual Optional multiple

earnings

3. Multiply your basic amount by your =

o ptional multiple and round to the Coverage amount

n ext higher thousand

4. Divide your coverage amount by =

1 ,000 $1,000 increments

Of coverage

5. From the table on the right, find =

t he rate that corresponds with Rate from table

y our age

X

Answer from #4

=

Your monthly

Insurance premium

10. The table referenced above provi des the premium rates

based on age bands, such as under age 30, 30 - 34, 35 - 39, etc. For

ages 55 - 59, the rate is $0.335. From 60 - 64, the rate is $0.613.

11. Below the rate/age table is the statement, Ð [r] at e s

increase with age and all rates subject to ch ange.Ñ However,

nothing in the worksheet indicates that the rate changes during a

plan year if the insured has a birthday that puts the employee in

a different age band.

12. Based upon his completion of the worksheet in People

First, the monthly premium for the optional life insurance

selected by Petitioner was $81.08.

13. Petitioner received a document entitled ÐState of

Florida Confirmation of Benefits for 2013 Plan Year.Ñ The

Confirmation of Benefits document confirmed that for the 2013 plan

year, PetitionerÓs monthly cost for optional life insurance would

be $81.08.

14. For the first two months of 2013, the expected amount of

$81.08 was deducted from PetitionerÓs salary. However, beginning

in March 2013, for the coverage beginning in April 2013, the

premium increased from $81.08 to $148.36, a difference of $67.28

per month. 1 /

15. Petitioner did not receive any specific notice regarding

the change in policy premiums. He did not notice the difference

in his net pay immediately because his salary is subject to

additives, and it was not unusual for the net pay to vary from

month to month. Employees do not automatically receive a copy of

their pay stubs. They must affirmatively retrieve them

electronically from a Department of Financial Services w ebsite.

16. Petitioner first called the People First information

line on August 27, 2013, to inquire regarding the increase in

premiums. He followed up with a letter dated September 10, 2013,

asking for a refund of the amount deducted from his salary in

excess of $81.08 a month.

17. On September 12, 2013, the People First Service Center

responded to his request by stating that the increase was a

ÐSignificant Cost Increase Qualifying Status Change (QSC) event,Ñ

and that inasmuch as Petitioner did not request a decrease in

coverage level within 60 days of the QSC event, any change to his

benefits would have to wait until open enrollment. The letter

referenced Florida Administrative Code Rule 60P - 2.003, stating,

We are charged with the responsibility o f

administering the State Group Insurance

Program pursuant to these state regulations,

as well as the federal regulations.

The rules pertaining to changes in health

plans are found in Chapter 60P - 2.003 which

states:

ÐAn employee may elect, change or canc el

coverage within thirty - one (31) days of a

Qualified Status Change (QSC) event if the

change is consistent with the event pursuant

t o subsection 60P - 2.003(7), F.A.C . or during

the open enrollment period.Ñ

18. While the letter purports to quote the rul e, rule 60P -

2.003, the language above does not actually appear as quoted in

the rule. Rule 60P - 2.003 states in relevant part:

(1) An employee enrolled in the Health

Program may apply for a change to family

coverage or individual coverage within

thirty - on e (31) calendar days of a QSC event

if the change is consistent with the event

or during the open enrollment period.

* * *

(7) All applications for coverage changes

must be approved by the Department, subject

to the following:

(a) The Department shall approve a coverage

change if the completed application is

submitted to the employing agency within

thirty - one (31) calendar days of and is

consistent with the QSC event.

(b) Documentation substantiating a QSC

event is as follows:

1. If changing to family coverage, proof of

family status change or proof of loss of

other group coverage is required.

2. If changing to individual coverage,

proof of family status change or proof of

change of employment status is required.

3. If adding an eligible dependent to

family coverage, proof of family status

change is required.

4. If terminating coverage, proof of family

status change or proof of employment change

is required.

19. On September 23, 2013, Petitioner sought a Level - II

appeal, forwarding all of his corr espondence to the Division. On

October 11, 2013, Barbara Crosier, Director of the Division, wrote

to Petiti oner and advised that his Level - II appeal was denied.

The letter cited rule 60 P - 2, and stated that Petitioner needed to

have acted within 31 days o f the QSC event if the change was

consistent with the event, or wait until the open enrollment

period. The letter provided Petitioner with notice of his right

to a hearing pursuant to chapter 120, Florida Statutes, and on

November 6, 2013, Petitioner file d a request for hearing that

resulted in these proceedings.

20. Both the correspondence from People First and the letter

from Ms. Crosier refer to a q ualifying s tatus c hange. However,

the definition of a QSC event in r ule 60P - 1.003(17) does not

include a change in age band. The events identified in the rule

are Ðthe change in employment status, for subscriber or spouse,

family status or significant change in health coverage of the

employee or spouse attributable to the spouseÓs employment.Ñ

21. There is a table available somewhere through People

First 2 / entitled Ð State of Florida Qualifying Status Change Event

Matrix. Ñ The matrix identifies changes in status, the type of

documentation required, and the options available to the employee.

There was no evidence presented indicating that the matrix has

been adopted by rule and in some instances, the matrix is

inconsistent with both section 110.123 and rule 60P - 1.003.

Petitioner did not see this matrix when making his insurance

selections during open enro llment.

22. Included in the matrix as a category of QSC events is a

category entitled Ð Signific ant Cost Changes . Ñ Under this

category, the grid identifies Ð [ p ] remium increase or decrease to

subscriber of at least $20 per month as a result of a change in

pay plan (e.g., Career Service to SES), FTE (e.g., part - time to

full - time), LWOP, FMLA, legislative premium mandates, Optional

Life age banding, etc.Ñ

23. The category Ðsignificant cost changesÑ is not

identified as a QSC event in rule 60P - 1.003(17).

2 4 . Footno te four of the matrix states, Ð[t] he period of

time to make allowable changes to benefits, as defined by the IRS.

All QSC windows are 60 days unless otherwise specified. Ñ Footnote

four is appended to text within the cell for information related

to a change in marital status, which states Ð60 - day QSC window 4 .Ñ

Petitioner credibly testified that he was not experiencing any

change to marital status, so did not believe that the information

identified in footnote four would necessarily relate to his

circumstances.

2 5 . On December 19, 2008, the Division published the State

of Florida Salary Reduction Cafeteria Plan with a Premium Payment

Feature, a Medical Reimbursement Component, and a Dependent Care

Component (Salary Reduction Cafeteria Plan) , whi ch Petitioner

submitted without objection as PetitionerÓs Exhibit 10 . This

document is available on the DMS website but has not been

identified as a rule. However, it is consistent with the

requirements of 26 U.S.C. § 125, which authorizes cafeteria plan s,

and 26 C.F.R. § 125 - 4, which identifies permitted election changes

in cafeteria plans. The Salary Reduction Cafeteria Plan states :

1.1 Establishment of Plan

The Department of Management Services,

Division of State Group Insurance

established the State of Florida Flexible

Benefits Plan effective July 1, 1989. The

Department of Management Services, Division

of State Group Insurance hereby amends,

restates and continues the State of Florida

Flexible Benefits Plan, hereafter known as

the State of Florida Salary Reduction

Cafeteria Plan (Ðthe PlanÑ), effective

December 19, 2008.

This plan is designed to permit an Eligible

Employee to pay on a pre - tax basis for his

or her share of premiums under the Health

Insurance Plan, the Life Insurance Plan and

the Sup plemental Insurance Plan, and to

contribute to an account for pre - tax

reimbursement of certain medical care

expenses and dependent care expenses.

1.2 Legal Status

This Plan is intended to qualify as a

Ðcafeteria planÑ under Section 125 of the

Internal Re venue Code 1986, as amended (Ðthe

CodeÑ), and regulations issued there under.

The Medical Reimbursement Component of this

Plan is also intended to qualify as a Ðself -

insured medical reimbursement planÑ under

Code 105(h), and the Medical Care Expenses

reim bursed under that component are intended

to be eligible for exclusion from

participating EmployeesÓ gross income under

Code 105(b).

The Dependent Care Component of the Plan is

intended to meet the requirements of Code

129.

The Life Insurance Plan is inte nded to meet

the requirements of Code 79.

26. The Salary Reduction Cafeteria Plan contained

definitions for a change in status. Those definitions are

consistent with the definitions in rule 60P - 1.003(17), although

more detailed in terms of description. The definition does not

include a change in cost due to age banding.

27. Section 4.3 of the Salary Reduction Cafeteria Plan

provides:

Each eligible EmployeeÓs Salary Reduction

Agreement shall remain in effect for the

entire Plan Year to which it applie s, shall

be irrevocable (except as provided in

Sections 5.6, 6.4, and 7.4) and shall set

forth the amount of the ParticipantÓs

Compensation to be used to purchase or

provide benefits and the benefits to be

purchased or provided.

28. Sections 6.4 and 7. 4 deal with a participantÓs election

to participate in the medical reimbursement component and the

dependent care components of the plan and have no bearing on this

proceeding.

29 . Section 5.6 deals with the irrevocability of the

election under the premi um component of the plan. The section

states in pertinent part:

In other words, unless one of the exceptions

applies, the Participant may not change any

elections for the duration of the Plan Year

regarding:

¤ Participation in this Plan;

¤ Salary Reduct ion Amounts; or

¤ Election of particular component plan

benefits.

The exceptions to the irrevocability

requirement, which would permit a

Participant to make a mid - year election

change in benefits and/or Salary Reduction

amounts for this Premium Payment Co mponent,

are as follows:

(a) Change in Status: A Participant may

change or terminate his actual or deemed

election under the Plan upon the occurrence

of a change in status, but only if such

change or termination is made on account of,

and is consistent with, the change in

status. The Administrator (in its sole

discretion) shall determine whether a

requested change is on account of, and is

consistent with, a change in status.

(b) Special HIPAA Enrollment rights. . . .

(c) Certain judgments, decrees a nd orders.

. . .

(d) Medicare and Medicaid. . . .

(e) Significant Change in Cost or Coverage.

A Participant may revoke a prior election

with respect to pre - tax contributions and,

in lieu thereof, may receive, on a

prospective basis, coverage under anot her

plan with similar coverage if any

independent, third - party provider of medical

benefits previously elected by the

Participant either significantly increases

the premium for such coverage, or

significantly curtails the coverage

available under such plan s, during the plan

year coverage period. (Note: if any mid -

year premium increase by the third - party

provider is insignificant, the ParticipantÓs

Salary Reduction election will be

automatically adjusted by the Administrator

or its agent.

(f) Significant Change in Coverage

Attributable to SpouseÓs Employment. . . .

(emphasis added).

30 . None of the exceptions to irrevocability identified

above apply in this instance.

31 . Section 5.2 of the Agreement addresses the ParticipantÓs

contributions and is th e provision upon which Petitioner relies.

It states in pertinent part:

If an employee elects to participate in the

Premium Payment Component the ParticipantÓs

share (as determined by the employer) of the

premium for the plan benefits elected by the

Partic ipant will be financed by salary

reductions. The salary reduction for each

pay period is an amount equal to the annual

premium divided by the number of pay periods

in the plan year, or an amount otherwise

agreed upon . . . . (emphasis added).

32 . Petiti oner did not experience a QSC event.

33. The Confirmation of Benefits received by Petitioner

identifies the amount of premium Petitioner has agreed to pay and

the benefit he was to receive for that premium.

34. He elected optional life insurance covera ge in

accordance with the information provided to him on the People

First screen. The statement Ðrates increase wit h ageÑ can be

construed, as Petitioner did , to explain the differences in rates

reflected in the table described in paragraph 10.

35. Noth ing placed Petitioner on notice that upon achieving

his 60th birthday, his premium would automatically increase to the

next premium category. Such an interpretation is inconsistent

with the method of premium calculation described in paragraph 5.2

of the S alary Reduction Cafeteria Plan.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.659 and 120.57(1), Florida

Statutes (2013).

37 . Petitioner is substantially affected by the increase in

premium deducted from his salary. Accordingly, Petitioner has

standing to challenge the deduction of the additional premium.

38. Petitioner is seeking a refund of the additional

premium. Because he is seekin g affirmative relief, Petitioner

has the burden of demonstrating his entitlement to a refund by a

preponderance of the evidence. DepÓt of Transp. v . J.W.C. Co. ,

396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. DepÓt of HRS ,

348 So. 2d 349 (Fla. 1st DCA 1977) ; § 120.57(1)(j), Fla. Stat.

39. Section 110.123(4) (g), Florida Statutes, provides that

Ð[n]o administrative or civil proceeding shall be commenced to

collect an underpayment or refund an overpayment of premiums

collected pursuant to this subsection unles s such claim is filed

with the department within 2 years after the alleged underpayment

or overpayment was made.Ñ The subsection specifies that Ð[f]or

purposes of this paragraph, a payroll deduction, salary

deduction, or contribution by an agency is deeme d to be made on

the date the salary warrant is issued.Ñ The first increase in

premium deducted from Petiti onerÓs salary occurred in March 2013,

and his request for refund occurred in September 2013.

PetitionerÓs request for a refund is thus timely pursua nt to

section 110.123.

40. Petitioner contends that he is entitled to a refund

because the agreement he made was to receive term life insurance

at four times his salary for a premium of $81.08 a month for the

plan year. The increase in premium, he assert s, was not

contemplated in the agreement that he entered or by the

Confirmation of Benefits that he received.

41. Respondent counters that his change in age is a

qualifying status change event, contemplated by documents

available in People First, and that his request to change

benefits was beyond the time period allowed for adjustments as a

result of QSC events. Respondent also asserts that Petitioner

consented to the increase pursuant to Florida Administrative Code

Rule 60 P - 2.002(3).

42. RespondentÓs cl aim that attainment of the age of 60 is

a QSC event relies on the matrix contained in RespondentÓs

Exhibit 4. However, no evidence was presented to demonstrate

that this matrix has been adopted through the rulemaking process.

Further, the definition of a QSC event contained in rule 60P -

1.003(17) does not include age banding. Rule 60P - 1.003(17)

states:

ÐQualifying status change (QSC) eventÑ or

ÐQSC eventÑ means the change in employment

status, for subscriber or spouse, family

status or significant change in health

insurance coverage of the employee or spouse

attributable to the spouseÓs employment.

The same definition is contained in rule 60P - 6.006(13). Neither

rule refers to a change in age as a QSC event. Accordingly,

attaining the age of 60 is not a QSC event.

43. The Division also relies on rules 60P - 2.002(3) and 60P -

6.0068(1). Rule 60P - 2.002(3) provides:

(3) The employee acknowledges that

eligibility and enrollment are governed by

Section 110.123, Florida Statutes;

authorizes the State to reduce salary as

often and in amount necessary to continue

coverage; authorizes the State to deduct

from salary any underpayment of employee

contribution or overpayment of claims;

acknowledges that premiums may change from

time to time; . . . .

Similarly, rule 60P - 6.60068 states in pertinent part:

(1) A participantÓs salary reduction amount

shall be increased or decreased

automatically to correspond to any changes

in employee contributions where, during the

Plan Year, there has been a change in the

cost of the premium under the State Health

Insurance Program.

44. Rule 60P - 6.0068 specifies that the automatic change

salary reduction is tied to mid - year changes to the premium of the

State Health Insurance Program. The premium at issue here is not

for health in surance, but life insurance. Regardless, the

acknowledgement identified in the rule that insurance premiums may

change from time to time does not necessarily mean that an

employee waives the right to contest the basis of the change.

45. In support of his argument that he bargained for the

premium contained in his Confirmation of Benefits, Petitioner

points to the Salary Reduction Cafeteria Plan (PetitionerÓs

Exhibit 10) , which states that the premium amount is determined by

dividing the annual premium by the number of pay periods in the

plan year. Respondent did not object to the introduction of

PetitionerÓs Exhibit 10.

46. The Salary Reduction Cafeteria Plan, like the matrix in

PetitionerÓs Exhibit 4 , does not appear to have been adopted by

rule. Us ually, an agency may not base agency action that

determines the substantial interests of a party on an unadopted

rule. § 120.57(1)(e), Fla. Stat. However, section 110.123(5)

requires the Department to determine the benefits to be provided

and the contrib utions to be required for the state group insurance

program. The Salary Reduction Cafeteria Plan appears to serve

this function. Section 110.123(5)(a) expressly exempts these

determinations from the definition of a rule under section 120.52.

If the Sala ry Reduction Plan is not what is contemplated by

section 110.123(5), then the Department is remiss in not adopting

what was intended as a rule pursuant to section 120.54. Given the

length of time that it has remained in place without rule

adoption, it is presumed that it constitutes the determination and

plan contemplated by section 110.123(5)(a) and (b).

47. The Salary Reduction Cafeteria Plan supports

PetitionerÓs position. The Confirmation of Benefits he received

indicates that it was for the 2013 pla n year, as opposed to some

portion of that year. The Salary Reduction Cafeteria Plan

indicates that the payment is determined by a division of the

annual premium. Absent some express notification that

PetitionerÓs 60th birthday would trigger a different premium, he

was entitled to rely on the representation that for the plan year,

his premium would be $81.08 per month.

48. Respondent points to the statement that Ðrates increase

with ageÑ on the premium worksheet as alerting Petitioner that his

rate would change during the course of the year. However, the

statement can also be interpreted as simply explaining the reason

for the different age bands. It does not place an employee on

notice that upon reaching the birthday at the top of a band, the

rate chan ges during the course of the year.

49. There are other reasons why this statement would not

notify an employee of an automatic change in premium. First, it

is inconsistent with the treatment identified in the DivisionÓs

rules with respect to other age - re lated issues. For example, rule

60P - 1.003(7) defines eligible children for the purposes of plan

benefits. Children are eligible for coverage as defined in the

rule as follows:

(a) From their date of birth to the end of

the month in which their nineteent h (19th)

birthday occurs;

(b) From their nineteenth (19th) birthday

to the end of the calendar year in which

their twenty - fifth (25th) birthday occurs,

if they are dependent upon the subscriber

for support and are either living with the

subsc riber or enro lled in any school . . . .

50. This rule specifically indicates when the coverage

eligibility stops at the end of the month during the plan year and

when it extends through the plan year. The Division is clearly

capable of identifying when coverage iss ues and premiums change

during a plan year. Given that the Confirmation of Benefits gave

a single amount for a monthly premium for the year in its

entirety, it was logical and reasonable for Petitioner to believe

that the listed amount was the amount cont emplated for the entire

year.

51. Second, the DivisionÓs contract with Minnesota Life

requires the contractor to Ðcomply with all laws, rules, codes,

ordinances, and licensing requirements that are applicable to the

conduct of its business.Ñ (Respondent Ós Exhibit 10, Section 10.5)

This necessarily requires compliance with those regulations

related to the offering of life insurance.

52. Chapter 626, Florida Statutes, and Florida

Administrative Code Chapter 69O - 150 regulate the activities of

insurers an d their agents. The rules in chapter 69O - 150 were

officially recognized by Order dated January 22, 2014.

5 3 . Florida Administrative Code Rule 69O - 150.107(1)(b)

specifies that Ð[i]nvitations to contract must clearly reflect the

insurer, the agent, the policy form number(s), the type plan,

premium payable, payment period, and if applic able, changes in

face amounts and premiums.Ñ Similarly, rule 69O - 150.108 requires

that Ð[a]n advertisement which is an invitation to contract shall

disclose the provisions relating to renewability, cance l l ability,

and termination and any modification of benefits, losses covered

or premiums because of age or for other reasons, in a manner which

shall not minimize or render obscure the qualifying conditions.Ñ

5 4 . Simply put, these provisions make it clear that notice

must be clearly stated to a purchaser when and if there will be

changes to the premium. When the change, such as one tied to age

banding, is clearly contemplated by the insurer, the notice must

be plainly stated . The general statement Ðrates increase with age

and are subject to changeÑ does not accomplish this objective and ,

without more, is misleading . Moreover, when asked at hearing

whether there was any statement available at open enrollment that

notified an employee that the rate would automatically change when

the employee reached his birthday, the DivisionÓs representative

could not identify any such statement.

5 5 . Under these circumstances, Petitioner has demonstrated

by a preponderance of the evidence that he contracted for optional

life insurance at a rate of $81.08 per month for the plan year

2013, and increased d eductions based upon his age were not

appropriate, absent express notification in accordance with rules

69O - 150.107 and 69O - 150.108.

RECOMME NDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a Final Order

authorizing the refund of excess premiums in the amount of

$605.52.

DONE AND ENTERED this 13th day of March , 2014 , in

Tallahasse e, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March , 2014 .

ENDNOTE S

1 / The premium for PetitionerÓs optional life insurance also

increased in November 2013, from $148.36 to $149.59. Decemb erÓs

premium was $150.82. Both increases were as a result of salary

increases (and a correspondent increase in the coverage amount).

Petitioner does not contest these small increases.

2/ How one would access this table was not explained at hearing.

COPIES FURNISHED:

Veronica E. Donnelly, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32308

Gerald Kreucher

1905 South Magnolia Drive

Tallahassee, Florida 32301 - 5758

Josefina M. Tamayo, General Counsel

Of fice of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

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 thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.