93-005571
Gregory E. Weaver vs.
Division Of State Employees Insurance
Status: Closed
Recommended Order on Wednesday, February 16, 1994.
Recommended Order on Wednesday, February 16, 1994.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GREGORY E. WEAVER, )
12)
13Petitioner, )
15)
16vs. ) CASE NO. 93-5571
21)
22DEPARTMENT OF MANAGEMENT SERVICES, )
27DIVISION OF STATE EMPLOYEES' )
32INSURANCE, )
34)
35Respondent. )
37___________________________________)
38RECOMMENDED ORDER
40Upon due notice, the Division of Administrative Hearings by its duly
51assigned Hearing Officer, William R. Cave, held a formal hearing in the above-
64captioned case on January 4, 1994, in Wauchula, Florida.
73APPEARANCES
74For Petitioner: Gregory Weaver, pro se
80Route 1, Box 423
84Wauchula, Florida 33873
87For Respondent: Augustus D. Aikens, Esquire
93Division of State Employees'
97Insurance
982002 Old St. Augustine Road, B-12
104Tallahassee, Florida 32301-4876
107STATEMENT OF THE ISSUES
111Whether Petitioner made a timely election to participate in the Florida
122Flexible Benefits Plan (Plan) in accordance with Rule 60P-8.0041(2), Florida
132Administrative Code and if not, should his participation in the Florida Flexible
144Benefits Plan (the Plan) for the Plan Year of December 1, 1991, through December
15831, 1992, be denied.
162Whether Petitioner would be entitled to reimbursement from the Plan for
173medical expenses incurred prior to November 12, 1992, provided it is determined
185that Petitioner made a timely election to participate in the Plan in accordance
198with Rule 60P-8.0041(2), Florida Administrative Code.
204PRELIMINARY STATEMENT
206By letter dated August 2, 1993, the Respondent, Department of Management
217Services, Division of State Employees' Insurance (Division) advised the
226Petitioner, Gregory E. Weaver, that the Division had denied Petitioner's claim
237for reimbursement from the Florida Flexible Benefits Plan Medical Reimbursement
247Account that was for medical expenses incurred prior to November 12, 1992.
259Thereafter, by letter dated August 23, 1992 and received by the Division on
272September 2, 1992, the Petitioner requested an administrative hearing pursuant
282to Section 120.57(1), Florida Statutes. By an Order Accepting Petition And
293Assignment To The Division of Administrative Hearings dated September 27, 1993,
304the matter was referred to the Division of Administrative Hearings for the
316assignment of a Hearing Officer and the conduct of a hearing. The initial Order
330Accepting Petition And Assignment To The Division of Administrative Hearings was
341amended on October 12, 1993, to correct the issue for resolution.
352At the hearing, the Petitioner testified in his own behalf and presented
364the testimony of Karen S. Weaver. Petitioner's exhibits 1 through 12 were
376received as evidence in this case. The Division presented the testimony of
388Verla Lawson. The Division's exhibits 1 through 3 were received as evidence in
401this case. Chapters 60P-8, Florida Administrative Code, and Proposed Treasury
411Regulation, Section 1.125-1 (as Amended) were officially recognized.
419There was no transcript of this proceeding filed with the Division of
431Administrative Hearings. The parties timely filed Proposed Recommended Orders.
440A ruling on each proposed finding of fact submitted by the parties has been made
455as reflected in an Appendix to the Recommended Order.
464FINDINGS OF FACT
467Upon consideration of the oral and documentary evidence adduced at the
478hearing, the following relevant findings of fact are made:
4871. At all times material to this proceeding, the Petitioner was a full-
500time employee of the University of Florida, Institute of Food and Agriculture
512Science (IFAS) in Hardee County, Florida and as such, was eligible to
524participate in the Plan Medical Reimbursement Account provided he timely elected
535to participate and was otherwise qualified.
5412. The Respondent is the state agency charged with the responsibility of
553administering all state insurance plans for state employees in the State of
565Florida.
5663. As part of its insurance program, the State of Florida offers the
579Florida Flexible Benefits Plan. The Plan is a benefit program for state
591employees under which specified, incurred medical expense may be reimbursed.
601The period of coverage for the Plan material to this proceeding was December 1,
6151991 through December 31, 1992.
6204. Petitioner did not enroll in the Plan during the open enrollment period
633for all state employees conducted by the Division during the month of October
6461991.
6475. During the summer of 1992, and again in October 1992, (sometime after
660the child was born on October 5, 1992) the Petitioner's wife, Karen S. Weaver,
674contacted the Division by telephone to inquire about, and to get clarification
686on, enrolling in the Plan based on a "Change In Family Status" (the child'
700birth) after the effective date of the Plan, December 1, 1991. On both
713occasions, Karen Weaver talked with an enrollment agent of the Division and,
725other than the child's date of birth, no effective date was discussed. The
738enrollment agent advised Karen Weaver that the Petitioner could not apply until
750after the birth of the child due to the documentation needed concerning the
763child's birth. Neither Karen Weaver nor Petitioner were ever advised that with
775proper certification of pregnancy from the wife's doctor that Petitioner could
786apply before the birth of the child.
7936. After the wife's last conversation with the Division, the Petitioner
804completed and signed a Reimbursement Account Enrollment/Qualifying Status Change
813Form, Form FB-2 (the Form) which was dated October 23, 1992. Whether the
826Petitioner returned the Form to IFAS's personnel office by mail or hand delivery
839is not clear from the record. However, a notation on the bottom of the Form
854indicates the Form was received by the personnel office of IFAS on November 9,
8681993. The Form was received by the Division on November 12, 1992.
8807. The instructions in the Revised September 1991 Florida Flexible
890Benefits Plan booklet on when Form FB-2 must be submitted provides in pertinent
903part as follows:
906Requests must be made by submitting a
913completed Enrollment/Qualifying Status Change
917Form, FB-2 (available from your personnel
923office), to DSEI within 31 days of the
931event's occurrence. . . .
9368. The instructions on the reverse side of Form FB-2 as to the submission
950of the form provides:
954Return this completed from to your personnel
961office. It must be received at DSEI within
96931 days of your employment or change in
977family/employment status. The personnel
981office is responsible for sending the form
988immediately upon its receipt to DSEI. THE
995EFFECTIVE DATE OF PLAN PARTICIPATION OR
1001CHANGE IN FAMILY/EMPLOYMENT STATUS WILL BE
1007THE DATE THE SIGNED AND PROPERLY COMPLETED
1014FORM AND DOCUMENTATION ARE RECEIVED BY DSEI.
10219. Petitioner was accepted in the Plan with an effective date of
1033enrollment being November 12, 1992, the date the Division received the Form from
1046Petitioner. The Petitioner elected to contribute $900.00 to the Plan Medical
1057Reimbursement Account to fund reimbursement payment for incurred medical
1066expenses. The Petitioner's acceptance in the Plan was based on the Division
1078having: (a) considered the child's birth as a qualifying status change and; (b)
1091determined that the Petitioner had timely elected to participate in Plan in
1103accordance with Rule 60P-8.0041(2), Florida Administrative Code, in that the
1113Form has been completed and dated (not received by the Division) within 31
1126calendar days of the occurrence of the qualifying status change.
113610. There was insufficient evidence to establish facts to show that within
114831 calendar days of occurrence (child's birth) of Qualifying Status Change the
1160Petitioner had: (a) placed the Form with the U.S. mail or similar carrier for
1174delivery to the personnel office of IFAS for submission to the Division; (b)
1187placed the Form with the U.S. mail or similar carrier for submission with the
1201Division; (c) hand delivered the Form to the personnel office of IFAS for
1214submission to the Division or; (d) hand delivered the Form to the Division.
122711. Notwithstanding that the notation on the bottom of the Form indicates
1239that the personnel office of IFAS had the Form in its possession as early as
1254November 9, 1992, there is competent substantial evidence to show that the
1266Division did not receive the Form until November 12, 1992.
127612. Likewise, there is competent substantial evidence to show that the
1287Respondent did not make a timely election to participate in the Plan by
1300submitting the Form to the Division within 31 calendar days of occurrence
1312(child's birth) of qualifying status change as required by Rule 60P-8.0041(2),
1323Florida Administrative Code, notwithstanding that the Form was dated October 23,
13341992, well within the first 31 calendar days of occurrence (child's birth) of
1347the qualifying status change.
135113. On December 14, 1992, the Petitioner submitted a claim for medical
1363expense reimbursement for his wife and infant daughter for medical expenses
1374incurred in the month of March, April, June, October and December, 1992.
138614. By letter dated December 24, 1992, the Division advised the Petitioner
1398that expenses incurred prior to his enrollment date of November 12, 1992, (the
1411date the Form was received by the Division) were not eligible for reimbursement
1424and to resubmit claims for services incurred after November 12, 1992. There was
1437no evidence presented as to whether the Petitioner resubmitted the medical
1448expenses incurred during the month of December 1992, for reimbursement.
145815. The Petitioner contends that the Division should grant Petitioner an
1469exception to the requirement that the effective date must be the date Form FB-2
1483is received by the Division and allow the effective date in this instance to be
1498the date of occurrence, October 5, 1992, (date of child's birth) of qualifying
1511status change. The Petitioner's contention is based primarily on the fact that
1523the verbal instructions from the Division was misleading, and that the Division
1535had made an exception by allowing the Petitioner to participate in the Plan even
1549though the Petitioner had not timely elected to participate in the Plan in
1562accordance with Rule 60P-8.0042, Florida Administrative Code.
156916. The Division denied the Petitioner's request for an exception
1579contending that there is no provision for granting an exception in either case.
1592The Division also contends that date Form FB-2 is completed and signed is the
1606date to be used to in calculating the 31-calendar day requirement to determine
1619if an employee has timely elected to participate in the Plan in accordance with
1633Rule 60P-8.0041(2), Florida Administrative Code. The Division's position is
1642expressly stated in Petitioner's exhibit 8 wherein William H. Lindner,
1652Secretary, Department of Management Services, is responding to a letter from
1663Petitioner and states:
1666In your letter you indicated that an
1673exception had been made in the enrollment
1680process. It had not. Subsection 60P-
16868.0041(2), F. A. C. (copy enclosed) indicates
1693that an election to participate in the
1700reimbursement accounts must be made within
1706the first 31 calendar days of the occurrence
1714of the Qualifying Status Change. Our records
1721indicate that you made your election on
1728October 23, 1992 which is within 31 days of
1737the birth of your child on October 5, 1992.
1746The records indicate that the Form was signed on October 23, 1992, well within
1760the 31-day requirement but was not received by the Division until November 12,
17731992, some seven days after the 31-day requirement had expired.
1783CONCLUSIONS OF LAW
178617. The Division of Administrative Hearings has jurisdiction over the
1796parties to, and the subject matter of, this proceeding pursuant to Section
1808120.57(1), Florida Statutes.
181118. Acting in accordance with the authority granted to it by the
1823Legislature under Section 110.161(5), Florida Statutes, the Department of
1832Management Services promulgated Chapter 60P-8, Florida Administrative Code,
1840which sets forth the rules governing participation under the reimbursement
1850account component of the Florida Flexible Benefits Plan.
185819. Since the Petitioner had not enrolled in the Plan during the annual
1871open enrollment period conducted by the Division in October, 1991, he must
1883experience an appropriate change in family status after the effective date of
1895the Plan in order to participate in the Plan. Rule 60P-8.0041(2), Florida
1907Administrative Code provides in pertinent part as follows:
1915(2) An employee . . . experiencing an
1923appropriate change in Family Status after the
1930effective date of the Plan shall make an
1938election to participate in the Plan within
1945the first 31 calendar days of . . .
1954occurrence of the Qualifying Status Change.
1960The employee shall elect to participate by
1967submitting to the Division of State
1973Employees' Insurance a completed
1977Reimbursement Account Enrollment/Qualifying
1980Status Change Form, Form FB-2, revised 12/89,
1987hereby incorporated by reference, specifying
1992his annual election amount(s) for the
1998account(s) for a period as defined in Rule
200660P-8.0042 . . . . (Emphasis supplied).
2013Therefore, an election to participate in the Plan requires the employee to
2025submit a completed form to the Division. While the term "submit" has not been
2039specifically defined by the statute or rule involved herein, it is clear by the
2053instructions contained on the reverse side of Form FB-2, which has been
2065incorporated by reference in Rule 60P-8.0041(2), Florida Administrative Code,
2074that submit means received by the Division within 31 calendar days of the date
2088of the occurrence. Otherwise, an employee could circumvent the 31-day
2098requirement by predating the form and mailing the predated form after the 31-
2111calendar day requirement had expired.
211620. In the instant case, the evidence is clear that the personnel office
2129of IFAS received the Form no later November 9, 1992, however, the form was not
2144received by the Division until November 12, 1992, some seven days after the 31-
2158day requirement had expired. Therefore, the Petitioner, having failed to timely
2169make an election to participate in the Plan as required by Rule 60P-8.0041(2),
2182Florida Administrative Code, was not qualified to participate in the Plan for
2194the period of coverage.
219821. However, assuming arguendo that the Division was correct in
2208determining the Petitioner had met the 31-calendar day requirement of Rule 60P-
22208.0041(2), Florida Administrative Code, and thereby qualified to participate in
2230the Plan, then Rule 60P-8.0042, Florida Administrative Code, provides that the
2241coverage period would be from the date that the properly completed Form FB-2 is
2255received by the Division (November 12, 1992) through the last day of the Plan
2269Year (December 31, 1992). Both the instructions in the Revised September 1991
2281Florida Flexible Benefits Plans and the instructions on Form FB-2 are consistent
2293with this position. Therefore, reimbursement payments could only be for medical
2304expenses incurred between November 12, 1992, and December 31, 1992. There does
2316not appear to be any authority, and the Division contends there is none, which
2330would allow the Division to make an exception to the effective date requirement
2343of Rule 60P-8.0042, Florida Administrative Code.
234922. Petitioner, as the party asserting the affirmative of an issue before
2361an administrative tribunal, has the burden to prove by a preponderance of the
2374evidence that he is qualified to participate in the Plan and if qualified, then
2388the effective date for the Plan period of coverage should have been October 5,
24021992, rather than November 12, 1992. Department of Transportation v. J. W. C.
2415Company, Inc., 396 So.2d 778 (1 DCA Fla. 1991). The Petitioner has failed to
2429sustain his burden in regard to his being qualified to participate in the Plan
2443or as to the effective date for the period of coverage for the Plan.
2457RECOMMENDATION
2458Based upon the foregoing Findings of Fact and Conclusions of Law, it is
2471recommended that the Respondent, Department of Management Services, Division of
2481State Employees' Insurance enter a final order finding that the Petitioner
2492failed to timely elect to participate in the in Plan in accordance with Rule
250660P-8.0041(2), Florida Administrative Code, was not qualified to participate in
2516the Plan, and any participation in the Plan allowed by the Division was void ab
2531initio. It is further recommended that the Division refund all contributions
2542made by the Petitioner to the Plan after adjustment for any reimbursement for
2555medical expenses that may have been made to the Petitioner by the Division.
2568DONE AND ENTERED this 16th day of February, 1994, in Tallahassee, Florida.
2580__________________________________
2581WILLIAM R. CAVE
2584Hearing Officer
2586Division of Administrative Hearings
2590The DeSoto Building
25931230 Apalachee Parkway
2596Tallahassee, Florida 32399-1550
2599(904) 488-9675
2601Filed with the Clerk of the
2607Division of Administrative Hearings
2611this 16th day of February, 1994.
2617APPENDIX TO RECOMMENDED ORDER NO. 93-5571
2623The following constitutes my specific rulings, pursuant Section 120.59(2),
2632Florida Statutes, on all of the Proposed Findings of Fact submitted by the
2645parties in this case.
2649Petitioner, Gregory E. Weaver's Proposed Findings of Fact.
26571. The following proposed finding(s) of fact are adopted in substance as
2669modified in the Recommended Order. The number in parenthesis is the Finding(s)
2681of Fact which so adopts the proposed finding(s) of fact:1(1); 3-4(5); 5-6(9);
26937(6,11); 9(11); 10(6,11); 11(9,16); 12(9); 13(8); 14-15(13); 16(15); 17(16);
270518(5) and 19(6).
27082. Proposed Finding of Fact 2 is neither material nor relevant to this
2721proceeding.
27223. Proposed Finding of Fact 8 is more properly covered in the Conclusions
2735of Law.
27374. Proposed Finding of Fact 20 is more an argument than a finding of fact.
2752Respondent's Proposed Findings of Fact.
27571. The following proposed findings of fact are adopted in substance as
2769modified in the Recommended Order. The number in parenthesis is the Finding(s)
2781of Fact which so adopts the proposed finding(s) of fact: 1(1,2); 2(3);
27943(4,6,9); 4(9); 7(13); and 8(14).
28012. Proposed finding of fact 5 is not supported by competent substantial
2813evidence in the record. See Findings of Fact 10 and 11.
28243. Proposed finding of fact 6 is adopted in substance as modified in
2837Findings of Fact 6 and 11, except for the first sentence which is rejected as I
2853find no evidence as to the Form being mailed.
28624. Proposed findings of fact 9 and 11 ( there is no proposed finding of
2877fact 10) are adopted in substance as modified in Finding of Fact 7 and 8.
2892COPIES FURNISHED:
2894Gregory Weaver
2896Route 1, Box 423
2900Wauchula, Florida 33873
2903Augustus D. Aikens, Esquire
2907Division of State Employment Insurance
29122002 Old St. Augustine Road, B-12
2918Tallahassee, Florida 32301-4876
2921William H. Lindner, Secretary
2925Department of Management Services
2929Knight Building, Suite 307
29332737 Centerview Drive
2936Tallahassee, Florida 32399-0950
2939Alecia Runyon, Director
2942Division of State Employees Insurance
29472002 Old St. Augustine Road, B-12
2953Tallahassee, Florida 32301-4876
2956Paul A. Rowell, General Counsel
2961Department of Management Services
2965Knight Building, Suite 307
29692737 Centerview Drive
2972Tallahassee, Florida 32399-0950
2975NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2981All parties have the right to submit written exceptions to this Recommended
2993Order. All agencies allow each party at least 10 days in which to submit
3007written exceptions. Some agencies allow a larger period within which to submit
3019written exceptions. You should contact the agency that will issue the final
3031order in this case concerning agency rules on the deadline for filing exceptions
3044to this Recommended Order. Any exceptions to this Recommended Order should be
3056filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 04/27/1994
- Proceedings: Final Order filed.
- PDF:
- Date: 02/16/1994
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held January 4, 1994.
- Date: 01/19/1994
- Proceedings: (Petitioner) Proposed Recommended Order filed.
- Date: 01/13/1994
- Proceedings: Proposed Recommended Order filed. (From Augustus D. Aikens, Jr.)
- Date: 01/04/1994
- Proceedings: CASE STATUS: Hearing Held.
- Date: 11/01/1993
- Proceedings: Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 1/4/94; 1:00pm; Wauchula)
- Date: 10/29/1993
- Proceedings: (Petitioner) Motion for Continuance filed.
- Date: 10/14/1993
- Proceedings: Notice of Hearing sent out. (hearing set for 11/10/93; 9:00am; Wauchula)
- Date: 10/13/1993
- Proceedings: (Respondent) Amended Order Accepting Petition and Assignment to the Division of Administrative Hearings filed.
- Date: 10/12/1993
- Proceedings: Letter. to REM from Gregory E. Weaver re: Reply to Initial Order filed.
- Date: 10/06/1993
- Proceedings: (Respondent) Response to Initial Order filed.
- Date: 10/01/1993
- Proceedings: Initial Order issued.
- Date: 09/29/1993
- Proceedings: Order Accepting Petition And Assignment To The Division of Administrative Hearings; Request For Formal Proceedings; Agency Action Letter filed.
Case Information
- Judge:
- WILLIAM R. CAVE
- Date Filed:
- 09/29/1993
- Date Assignment:
- 10/12/1993
- Last Docket Entry:
- 04/27/1994
- Location:
- Wauchula, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO