15-003763 Denise Morrow vs. Department Of Management Services Status: Closed Recommended Order on Friday, October 16, 2015.

Summary: Petitioner failed to prove that she enrolled in the State Group Insurance Program within 60 days of being hired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENISE MORROW,

Petitioner,

vs. Case No. 15 - 3763

DEPARTMENT OF MANAGEMENT

SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in thi s case on September 29, 2015,

before David M. Maloney, Administrative Law Judge with the

Division of Administrative Hearings in Tallahassee, Leon County,

Florida.

APPEARANCES

For Petitioner: Denise Morrow , pro se

1560 High Road , Apartment 227A

Tallahassee, Florida 32304

For Respondent: Veronica E. Donnelly, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

Whether as a matter of fact Petitioner enrolled in an

employer - sponsored health care benefits plan within 60 days of

her full - time employment with the Department of Revenue?

If not, whether a problem with the online registration

system resulted in Petitioner not being timely enrolled in a

health care benefits plan?

The resolution of these two issues will result in a

determination of the ultimate issue: whether Petitioner is

entitl ed to enrollment in an employer - sponsored health care

benefits pla n for the 2015 Plan Year.

PRELIMINARY STATEMENT

On June 30, 2015, the Division of Administrative Hearings

(DOAH) received a letter (the " Referral Letter " ) from Patrick K.

Wiggins, assistant general c ounsel and hearing o fficer for the

Department of Manageme nt Services (DMS or the " Department " ). The

Referral L etter notified DOAH that this case had been referred to

DOAH after the termination of informal proceedings before the

Department. Attached to the Referral Letter were three

documents: an order transfe rring the matter, a request by

Petitioner deemed to be one for an informal hearing , and an

agency action letter.

The referral to DOAH was preceded by a series of related

events. First, in early 2015, Petitioner requested the People

First Service Center to enroll her in the State Group Insurance

Program without a Q ualifying Status Change (QSC). The request

was rejected. Petitioner ' s Level I appeal of the rejection was

forwarded to the Department ' s Division of State Group Insurance

(DSGI) , where it was ele vated to a Level II appeal.

On March 6, 2015, DSGI issued a letter that denied

Petitioner ' s Level II appeal (the agency action letter attached

to the Referral Letter). The agency action letter offered

Petitioner two options: a request for a formal hearin g that

complies with Florida Administrative Code Rule 28 - 106.201 that

states facts in dispute or a request for informal hearing. In

response, Petitioner submitted a letter . F iled with the agency

c lerk for DMS on March 27, 2015 , t he letter asked that Peti tioner

be permitted to enroll in the State Group Insurance P rogram and

was treated as a request for an informal hearing. The informal

proceeding was conducted on June 29, 2015. When in the judgment

of the presiding officer disputed issues of material fac t arose ,

he terminated the informal hearing and ordered the matter

transferred to DOAH. The order found disputed issues of material

fact to include two issues: whether Petitioner enrolled in the

health care benefits plan within 60 days of her employment with a

state agency; and, if not, whether a problem with the online

registration system resulted in Petitioner not being timely

enrolled.

The undersigned was designated by DOAH as the administrative

law judge to conduct the proceeding. The case was prompt ly set

for hearing. After two continuances, one at the request of

Respondent and the other at Petitioner ' s, the case was

rescheduled and heard on September 29, 2015.

Prior to the hearing, Respondent ' s Motion to Restrict the

Use and Disclosure of Protected Information Concerning State

Employees and Dependents and Respondent ' s Motion for Official

Recognition were granted. At hearing, the Department proceeded

first. It presented the testimony of Dwayne Purifoy and Debra

Shoup. Respondent ' s Exhibits 1 throu gh 7 were offered into

evidence and admitted without objection. Petitioner testified on

her own behalf , and Petitioner ' s Exhibit 1 was admitted without

objection.

A court report er was present during the hearing , b ut a

transcript of the proceeding was not ordered by either party. At

the conclusion of the hearing, the parties agreed to a deadline

of Wednesday, October 7, 2015, to submit proposed recommended

orders. Petitioner was advised to contact the DOAH Clerk

regarding recommended order formatting and requirements.

Respondent offered to send Petitioner the DOAH link on the

internet. Both parties timely submitted proposed orders

containing findings of fact and conclusions of law and they have

been given due consideration.

Reference s to statutes are to Florida Statu t es (2014) ,

unless otherwise noted.

FINDING S OF FACT

a. Petitioner, Her New Hire Date, and the 60 - Day Window

1. Petitioner, Denise Morrow, is currently a full - time

employee (FTE) of the Florida Department of Revenue.

2. Since childhood , sh e has been enrolled in a federally

supported specialized health insurance program. Full - time

employment may jeopardize the specialized health insurance

coverage , and , at the hearing , Petitioner alluded to an ongoing

investigation that could lead to its lo ss. It may be inferred

from Petitioner ' s testimony that whatever the outcome of an

investigation, her specialized health insurance coverage had not

yet been discontinued as of the time of hearing because of her

FTE status with the Department of Revenue.

3 . Sometime between November 14 and November 17, 2014, 1 /

Petitioner was hired as a computer programmer analyst with the

Department of Revenue in FTE capacity. A new hire benefits

package was sent to Petitioner on November 19, 2014. Petitioner

received it .

4. Prior to the hire, Petitioner had been a part - time OPS

employee with Florida State University (the " University " ) . I n

her OPS capacity , s he was not allowed to work 30 hours or more in

any week. Were she to do so, Petitioner believed it could lead

to her being considered entitled to FTE health insurance benefits

and would threaten her specialized health insurance coverage.

Consequently, Petitioner ' s work weeks at the U niversity were

29 hours and a fraction of a 30 th hour at most.

5. Petitioner ' s emp loyment at the U niversity overlapped her

FTE employment with the Department of Revenue until February 14,

2015. During the time of the overlap, from mid - November 2014

through February 14, 2015, Petitioner had two active People First

ID numbers.

6. From t he moment of hire, Petitioner had 60 days (the

60 - Day Window) in which to enroll in the employee health

insurance program. The 60 - Day Window lasted until January 13,

2015, if she was hired on November 14, 2014 , and until

January 16, 2015, if she was hire d on November 17, 2014. If

Petitioner did not enroll in an employee health insurance program

within the 60 - Day Window then, absent a QSC after her hire,

Petitioner lost the ability to obtain employee health insurance

benefits until the next open enrollmen t program from October 19

through November 6 , 2015. Should she enroll in an employee

health insurance program in the October/November 2015 open

enrollment period, the enrollment would be effective on

January 1, 2016.

7. The records of DSGI do not show th at Petitioner enrolled

in the employee health insurance program during the 60 - Day

Window.

8. Unless a QSC subsequent to hire occurs, if Petitioner ' s

Level II appeal is not granted, she will not be eligible to

receive benefits from the employee health insu rance program until

January 1, 2016, and only then if she enrolls during the 2015

open enrollment period.

9. Petitioner contends she enrolled in the employee health

insurance program in late November 2014 and that if DSGI records

do not show enrollment, i t must be due to computer error. At

stake in this proceeding is whether Petitioner will receive any

employee health insurance benefits for the entirety of the period

of her FTE employment with the Department of Revenue from

November 2014 through December 31, 2015.

b. Online Administration

10. Employee health insurance benefits are administered by

a private contractor, Northgate Arinso, through an online system

called " People First. " An employee who applies for enrollment

can use the online system and ca n call People First to assist in

the process.

11. If an employee has difficulties with the online system,

People First will assist with enrollment by telephone and will

make the computer entries into the system on the employer ' s

behalf.

12. Petitioner ' s 60 - Day Window was close in time to the

2014 open enrollment period , but it was outside the period; the

60 - Day Window commenced after open enrollment had closed.

13. When an employee is eligible for benefits, an overlay

is placed on the employee ' s home pag e on the People First online

system. The overlay requests that the employee complete an

address verification process and a dependent certification

process prior to health insurance enrollment.

14. Once the processes for address verification and

dependent certification are completed, a message that thanks the

employee appears on the computer screen. The " thank you " message

clears the way for the employee to either commence with

enrollment by clicking an " Enroll Now " box or defer the

opportunity to enroll by clicking in an " Enroll Later " box, which

closes the program.

15. If an employee defers and decides later to enroll,

access to the enrollment pages can be gained on the employee ' s

People First home page. The employee can use a drop down box

entitled " H ealth & Insurance " with the subheading, " Change My

Benefits. " Or, if there has been a QSC event, the employee can

use the " Health & Insurance " home page with an icon denominated

" Change My Benefits " icon to make changes.

16. The enrollment process requir es an employee to select a

health plan, agree to the premium amount to be collected from

paychecks, and certify that the information entered is true and

correct. The final step in enrollment has two parts: entry of

the employee ' s People First password an d clicking the " Complete

Enrollment " box. So long as the employee h as entered all the

required information, clicking on the " Complete Enrollment " box

finalizes the enrollment.

17. Upon completion of enrollment, a benefits confirmation

document is generat ed. An employee can print the document

immediately for record keeping. Additionally, the benefits

confirmation statement is mailed by People First to the

employee ' s address of record supplied through the address

verification entered by the employee. A r ecord of the mailing of

the confirmation of benefits document is maintained by People

First as part of its business records in a correspondence history

for the individual employee. The completion of enrollment is

reflected also in an audit of the moments the employee gains

access to the People First online system. The audit is not

ordinarily available; it must be requested. Any telephone

contact with an employee is maintained through a log of call

notes.

c. Online Activity and the 30 - Day Reminder Letter

18. An audit of Petitioner ' s activity in the People First

online system under both of her People First ID numbers shows

that Petitioner entered the " Change My Benefits " screen 20 times

during the 60 - Day Window.

19. She entered the " Change My Benefits " s creen twice on

November 19, 2014. The following day, November 20, 2014, she

again entered the " Change My Benefits " screen twice. Her online

activity on November 20, 2014, included completion of the address

verification process used to ensure receipt of c ommunications

from People First, insurance companies , and her employer, the

Department of Revenue. The address verification " thank you " from

People First is noted in the People First correspondence log for

Petitioner kept at the Department of Revenue.

20. Petitioner did not begin enrollment in health insurance

benefits on November 20, 2014. In order to leave the system with

the intent of foregoing enrollment at that time and deferring

until later, she was required to click the " Enroll Later " box and

clos e the program after the address verification was completed.

The audit does not show that Petitioner commenced the enrollment

process on or before November 20, 2014. (Petitioner ' s testimony

is consistent on this point. She testified that she did not

enro ll when she accessed the online system several times prior to

when she claims she eventually enrolled , some unspecified date in

late November 2014.)

21. Petitioner gained access to the " Change My Benefits "

screen twice on November 21, 2014, and twice on N ovember 24,

2014. The entry onto the screen twice in each of the four days

in November (November 19, 20, 21, and 24) that the audit shows

Petitioner visited the " Change My Benefits " page is consistent

with her testimony that she toggled between her Univer sity People

First screen and her Department of Revenue People First screen

each time she entered the " Change My Benefits " screen.

22. Petitioner testified that she completed enrollment in

an employee health benefits plan on a date she could not recall

in late November 2014. (The date, presumably, would be

November 21 or 24, the two dates she accessed the " Change My

Benefits " page in November after her first two visits to the

page.) Failure to recall the date is understandable given the

number of times sh e accessed the page over the six - day period

from November 19 through November 24. But, in addition to not

remembering the date, Petitioner could not recall the plan that

she selected. She testified that under the listings of plans by

each company there w ere numerous plans from which to choose and

she could not remember the exact plan that she selected. While

this failure to recall (whatever the plan ' s complexities) is of

more concern than failure to recall the date, her testimony

contained a greater fail ure of recall. She did not remember the

company that she selected either.

23. A 30 - day reminder letter is sent out by People First to

employees who have not confirmed benefit selections within the

first 30 days of eligibility. The People First correspon dence

history shows a 30 - day reminder letter was created for Petitioner

on December 17, 2014 , and was sent to her on December 18, 2014.

Petitioner confirmed that she received the 30 - day reminder

letter.

24. The form reminder letter begins with a sentence in bold

that reads, " Time to choose your state insurance benefits is

running out! " Respondent ' s Ex. 3. The letter goes on to declare

the recipient eligible for insurance benefits through the State

Group Insurance Program, to provide details about when a nd how to

enroll on the website, to give online site information of where

detailed information may be obtained to make educated decisions,

and to refer to enclosed documents about other benefits

information. The closing of the letter states, " Finally, if you

have any questions about how to enroll, make payments or use

People First, please give us a call at (866) 663 - 4735. TTY users

call (866) 221 - 0268. We are open Monday through Friday, from

8:00 a.m. to 6:00 p.m. Eastern Time. " Id.

25. Petitioner did not present any evidence that she

attempted to reach People First at the telephone number provided

in the 30 - day reminder letter during the 60 - Day Window. Nor did

she present any evidence that she attempted to get assistance

from People First in any other manner or from the Department of

Revenue personnel office or its human resource officer during the

time period critical to enrollment. But she was concerned, she

alleged, about the status of her enrollment after the time she

claimed to have completed enr ollment Î - late in November.

Petitioner testified her efforts to ensure enrollment were by

continued access to the " Change My Benefits " page. Whatever the

purpose, the audit confirms more visits by Petitioner to the

page. It reveals 12 post - November 2014 visits: twice on

December 1, 2014; twice on December 2, 2014; twice on December 3,

2014; twice on December 4, 2014; twice on January 5, 2015; and

twice on January 12, 2015.

26. Other than the 12 visits to the " Change My Benefits "

page in December 2014 an d January 2015, four of which occurred

after receipt of the 30 - day reminder letter, Petitioner took no

action to verify that she had been enrolled in a health plan

until more than two weeks after the 60 - Day Window had expired.

On February 3, 2015, Petitio ner contacted People First about her

enrollment status. When Petitioner was informed that she was not

enrolled, she began the appeal process which ultimately was

elevated to a Level II appeal before DSGI.

d. DSGI Action

27. Respondent denied Petitioner ' s Level II appeal for

enrollment outside of the 60 - Day Window because she had not had a

QSC event subsequent to hire and because there was no information

or record in the People First online system to support

Petitioner ' s assertion that she had completed e nrollment. The

records do not contain the identity of a plan in which she sought

enrollment. The records do not contain a benefits confirmation

statement. The audit demonstrates that " Change My Benefits " was

viewed by Petitioner, but never changed. Pre miums were never

taken from Petitioner ' s pay check.

28. Petitioner claims that if the system does not show her

to have enrolled , it is because there were flaws in the system or

a malfunction that caused her enrollment to be lost.

29. The People First onl ine system is reviewed for possible

computer malfunctions or errors every 15 days with corrections

being made upon discovery. No errors were found in Petitioner ' s

files during these routine reviews.

CONCLUSIONS OF LAW

30. The Division of Administrative H earings has

jurisdiction over the parties and the subject matter of this

action. §§ 120.569 and 120.57, Fla. Stat. (2015).

31. Enrollment in employee benefits by new hire FTEs is

governed by Florida Administrative Code Rule 60P - 2.002(1)(a). In

pertinent part, it provides that " [a] n employee or state officer

may apply for enrollment in the Health Progra m . . . [d] uring the

first (60) calendar days of state employment or a new term of

office . "

32. As the party asserting the affirmative of issues,

Petition er has the burden of demonstrating by a preponderance of

the evidence that she took the steps to enroll within the 60 - Day

Window and that if the system did not accept her enrollment, it

was because of system error. See Marisol Duran v. Dep ' t of Mgmt .

Serv s . , Div . of State Group Ins . , Case No. 12 - 2259 (Fla. DOAH

Oct. 4 , 2012; Fla. DMS, DSGI Dec. 21, 2012); § 120.57(1)(j) , Fla.

Stat. ( " Findings of fact shall be based upon a preponderance of

the evidence [with non - relevant exceptions] . " ); Gross v. Lyons ,

763 So. 2 d 276, 280 n.1 (Fla. 2000)(explaining that " [a]

preponderance of the evidences 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 omitte d).

33. Pursuant to the findings of fact, Petitioner failed to

demonstrate by a greater weight of the evidence that using the

People First online system she timely enrolled in an employer -

sponsored health care benefits plan, that is, within the 60 - Day

Win dow that expired at the latest on January 16, 2015. She also

failed to demonstrate by a greater weight of the evidence that

her lack of enrollment was due to an error or some other problem

with the People First online system.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Management Services,

Division of Group State Insurance, enter a final order denying

Petitioner ' s request to enroll in the State Group Insurance

Program and affirmi ng its denial of her Level II appeal.

DONE AND ENTERED this 16th day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 16th day of October , 2015 .

ENDNOTE

1/ Petitioner asserts in her proposed order that she was hired on

November 17, 2014. Respondent assert s in its proposed order that

the date of hire was November 14, 2014. This Recommended Order

is not benefited by a transcript of the final hearing. Notes

taken during the hearin g indicate that Petitioner agreed with the

November 14 date at the time of hearing. Whether the " new hire "

date is November 14 or 17 (or any date between the two) is

immaterial to the outcome of this case. It is sufficient to know

that Petitioner ' s new h ire date is between November 14 and 17,

2014.

COPIES FURNISHED:

Veronica E. Donnelly, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399

(eServed)

Denise Morrow

1560 High Road , Apartment 227A

Tallahassee , Florida 32304

J. Andrew Atkinson, General Counsel

Office of the General C ounsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

Gavin D. Burgess, Esquire (eServed)

Department of Management Ser vices

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

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.