99-004328 Mohsen M. Milani vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Wednesday, March 8, 2000.

Summary: Petitioner proved that he timely submitted his claims form for benefits under the Florida Flexible Benefits Program--Reimbursement Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOHSEN M. MILANI, )

)

Petitioner, )

)

vs. ) Case No. 99-4328

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in by

videoconference on January 14, 2000. The Administrative Law

Judge, Respondent's counsel, and Respondent's witness appeared in

Tallahassee. Petitioner and his wife, as well as the court

reporter, appeared in Tampa, Florida.

APPEARANCES

For Petitioner: Mohsen M. Milani, pro se

15927 Ellsworth Drive

Tampa, Florida 33647

For Respondent: Julia F orrester

Assistant General Counsel

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner timely filed his request for

claim form requesting reimbursement for certain covered expenses

under the Florida Flexible Benefits Program--Reimbursement Plan.

PRELIMINARY STATEMENT

By letter dated July 15, 1999, Respondent informed

Petitioner that it was denying as untimely his request for

reimbursement for certain medical expenses. Petitioner requested

a formal hearing.

At the hearing, Petitioner called two witnesses and offered

into evidence two exhibits. Respondent called one witness and

offered into evidence five exhibits. All exhibits were admitted.

The court reporter filed the Transcript on February 24,

2000.

FINDINGS OF FACT

1. Petitioner is a member of the faculty of the University

of South Florida. He participates in the Florida Flexible

Benefits Program--Reimbursement Program (Program).

2. The Plan allows participants to pay certain eligible

medical or dependent day care expenses with pretax earnings.

Each year, during an open enrollment period, an employee may

elect to participate in the Program and select an amount of

salary to be deducted from his or her pay. The amount of salary

so deducted is not subject to federal income tax, but is

available to reimburse the employee for covered expenses.

3. In order for the Program to continue to enjoy

preferential treatment under the federal income tax law,

Respondent, which administers the Program, must adhere to certain

rules. Most relevant to this case is that that the deducted

salary must be at risk. Specifically, an employee is not

entitled to a refund of all or part of the deduction if he or she

does not timely submit sufficient reimbursable expenses to

exhaust his or her account. The Program brochure clearly warns

participants of this "use it or lose it" rule.

4. The plan year for the Program is the calendar year. In

1997, Petitioner was a participant in the Program. He and his

wife chose not to submit claims for covered expenses, as they

paid them during the year. Instead, they accumulated the

receipts with the intent of submitting a single claim for their

account balance at the end of the plan year.

5. The Program sets a claims filing deadline of April 15

for filing claims arising out of the expenses paid in the

preceding calendar year. The Program brochure warns that this

deadline

means all claims for expenses incurred during

a plan year must be postmarked by midnight,

April 15 of the following year to be

considered for processing. Any claims

received after this date will be returned to

the participant unprocessed, regardless of

the account balances. Participants should

file claims as soon as the required

documentation is obtained.

6. This case involves only one issue: whether Petitioner

timely submitted his claims for reimbursement under the Program.

There is no issue concerning Petitioner's payment of these

expenses or his account balance. There is no issue whether these

expenses are eligible for reimbursement.

7. In early March 1998, Petitioner and his wife collected

their receipts for covered expenses from 1997. Petitioner

completed a reimbursement form and addressed the envelope to

Respondent at the correct address. Wanting to make copies of the

materials, Petitioner did not immediately mail the package to

Respondent.

8. A few days later, prior to copying the materials or

mailing the package, Petitioner's father became ill in the

Mideast, where he lives. Petitioner and his wife agreed that she

would copy the materials and mail the package to Respondent.

9. On March 21, which marks the birthday of Petitioner's

wife and a cultural holiday for Petitioner and his wife,

Petitioner's wife telephoned her husband, who was still visiting

his sick father. In the ensuing discussion, Petitioner learned

that she had not yet mailed the package. They discussed the

matter and again agreed that she would copy the materials and

mail the package without further delay.

10. Without further delay, Petitioner's wife copied the

materials and mailed the package to Respondent at the correct

address. She placed the package with sufficient postage in a

mailbox across from her home. The package consisted of a claims

reimbursement form and receipts for eligible expenses. It

appears that she may have written an old return address on the

envelope.

11. Respondent never received the package. Respondent's

procedures are carefully designed and executed to ensure that it

will not lose a claim form. Repeated searches for the missing

form never uncovered it.

12. The package was lost after its mailing by Petitioner's

wife and prior to its delivery to Respondent. Possibly, the

incorrect address precluded notification to Petitioner of

problems with delivery. Possibly, the package was just lost.

13. Unfortunately, Petitioner learned only after the April

15 deadline that Respondent had never received the package.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.

All references to Rules are to the Florida Administrative Code.)

15. Section 110.161(6)(b) authorizes Respondent to

establish the Program.

16. Rule 60P-6.0081(3) provides that claims "must be

postmarked or received if not mailed, at the Department no later

than April 15 following the prior Plan Year." Rule 60P-6.010

provides that an employee forfeits any unused balance in his

reimbursement account following the claim filing deadline.

17. Petitioner satisfied the requirement of timely filing

by depositing the package in a mailbox on or about March 21,

1998. Respondent should therefore reimburse Petitioner for

eligible expenses, up to Petitioner's account balance.

RECOMMENDATION

It is

RECOMMENDED that the Department of Management Services,

Division of State Group Insurance, enter a final order

determining that Petitioner timely submitted the claim and

eligible expenses that were the subject of this case.

DONE AND E NTERED this 8th day of March, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March, 2000.

COPIES FURNISHED:

Paul A. Rowell, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Mohsen M. Milani

15927 Ellsworth Drive

Tampa, Florida 33647

Julia Forrester

Assistant General Counsel

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

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 must be filed with the agency that will

issue the final order in this case.