11 Fla. L. Weekly Supp. 1112a
Insurance — Personal injury protection — Any PIP provider seeking to obtain PIP benefits from an insurer must have requisite medical licenses pertaining to particular provider’s qualifications and competency to perform the provider’s particular speciality under the applicable medical chapter of Florida statutes — Requirement for having county occupational license has nothing to do with having requisite qualifications to perform particular medical profession and specialty — Insurer’s amended motion for summary judgment denied
KAM HABIBI, D.C., P.A., as assignee of MARIE DORESCA, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-014688, Division 53. September 1, 2004. William W. Herring, Judge. Counsel: Nichole S. Pacella, Bohannon, Rogers & Aronson, Fort Lauderdale. Gregory P. Hengber.
[Editor’s note: See 12 fla. L. Weekly Supp. 494b.]
ORDER ON DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on Defendant’s Amended Motion for Summary Judgment and the Court having heard argument of counsel on August 18, 2004 and being otherwise fully advised in the premises, it is hereupon
ORDERED AND ADJUDGED that Defendant’s Amended Motion for Summary Judgment is denied and the Court further strikes with prejudice the involved affirmative defense which is number 2 of Defendant’s Amended Affirmative Defenses.
The Court is ruling that the clear intent of the legislature in Florida Statute § 627.736, former Subsection 5(d) of the PIP statute, and the current statute, Subsection 5(e) was to require that any PIP provider seeking to obtain PIP benefits from a PIP insurer have the requisite medical licenses in terms of licenses that have to do with the particular provider’s qualifications and competency to perform that particular specialty under the involved chapter, medical chapter of Florida Statutes.
I think that the language of Florida Statute, Section 205.022 underscores this, because the language of that statute makes clear that a county occupational license is for one purpose and one purpose only, and that is to generate tax revenues for the involved governmental entity, a county, and the same thing for a municipality or city. The language of the statute says that the occupational license and the tax is in addition to, and has nothing to do with the regulatory purpose in terms of the qualifications of that business profession to perform their particular profession. I note that nowhere within the PIP statute is Section 205.022 referenced. The legislature could have readily done that if they were so inclined. I analogize the situation with answers that I used to get from defendant insurers citing to me various regulatory chapters like 456 and some other ones, not dealing with patient brokering, but with for instance the requirements for sending in sufficiently detailed bills, and that they had to be submitted within like 14 or 21 days, whereas the PIP statute has another requirement of 35 days.
The argument was made to me by Plaintiff’s lawyers, look judge those particular other regulatory statutes are nowhere referenced within the body of the PIP statute, therefore the legislature didn’t mean to include them as a requirement to be performed by the provider as a precondition to being able to qualify for PIP benefits, and be paid PIP benefits. I think that what the Defendant insurer here is attempting to do is similar to what United Automobile tried to do in the Ortega case, it tried to engraft under the PIP statute a requirement that is not there. In the Ortega case at 847 So.2d 994 the Third DCA pointed out that the PIP statute does not require on the HCFA form or any other billing form that is approved by the state to be submitted to the insurer to get payment of PIP benefits, does not require a statement of a licensure of the provider performing the benefits on the face of the HCFA or billing form or an attachment thereto. All that is required is that in that situation that the HCFA or billing form number 1: be an approved form, 2: have proper CPT codes for the current year. Here, I think we are trying to engraft, or the Defendant is trying to engraft or add a requirement that is not within the four corners of the PIP statute. Lastly, the Defendant’s argument about who has the dog in the fight here I think is pertinent, but doesn’t help his argument because the Defendant insurers in PIP cases do not have standing to argue that a provider has not complied with an occupational license requirement. That is between the involved provider and the governmental entity, the county.
Alternatively, the argument that the Plaintiff made that all the county wants is belated compliance is certainly correct here, because the county never tried to shut the Plaintiff down because the Plaintiff did not earlier have this county occupational license, all it was concerned about was getting its revenue.
Again, the requirement for having occupational license has nothing to do with having requisite qualifications, passing requisite tests and having the requisite education and so forth and training to be qualified to perform the particular profession and specialty that we are talking about for which we are performing services on patients. Lastly, since a county occupational license, or a municipal occupational license for that matter, has no regulatory purpose and has nothing to do with the qualifications of a provider to perform the services that are being billed for, then there is no element here of protecting the public in terms of a patient consumer, in terms of having someone perform services that they are not qualified in terms of their competency to perform. That is what the legislature was concerned about, not having providers who lacked the requisite qualifications under their respective licensing statutes, and not having the requisite competency, not having them perform these medical services, and the penalty for not having those licenses was that you were not going to get paid PIP benefits, never mind the other penalties that you would be subject to in terms of professional suspension of your license, and those kinds of penalties in terms of not being able to perform your profession.
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