13 Fla. L. Weekly Supp. 395a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 513b
Insurance — Personal injury protection — Notice of claim — Disclosure and acknowledgment form — Medical provider which did not use standard disclosure and acknowledgment form authored by Office of Insurance Regulation, but instead used self-generated disclosure and acknowledgment form, substantially complied with Section 627.736 — Insurer demonstrated that it received written notice of covered loss by making reduced payment of bill, and insurer did not advise provider that it would not process bill because of need for approved form or notify provider when it received demand letter that it did not consider itself in receipt of written notice of covered loss — Defendant’s motion for summary judgment is denied
GARY H. WEISS, D.C., DABFE As assignee of JUDY BEST, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 05 SC 0091 19 S. February 6, 2006. John R. Sloop, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, P.A., Maitland, for Plaintiff. Michael Liebgold, St. Petersburg, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause came before the Court on the Defendant’s Motion for Summary Judgment. The Court has considered the motion, being fully advised in its premises, and after hearing oral argument of the parties, the Court finds as follows:
1. Ms. Judy Best is a Personal Injury Protection (P.I.P.) insured of Defendant with regards to an automobile accident which occurred on or about June 20, 2003.
2. On October 14, 2004, Dr. Gary H. Weiss, for over an hour, evaluated Ms. Judy Best for injuries she received in the June 20, 2003 automobile accident. (See the affidavit of Dr. Gary H. Weiss previously filed with this Court).
3. Dr. Gary H. Weiss billed Defendant for the service provided (CPT 99204) at a rate of $400.00, an amount regularly paid to Dr. Weiss by Defendant for an hour, or any part thereof, for his services as an expert, and an amount which Defendant has paid Dr. Weiss for CPT code 99204 in the past. (See the affidavit of Dr. Gary H. Weiss previously filed with this court).
4. Accompanying the bill (HCFA/CMS 1500 form) to Defendant was an assignment of benefits executed by Judy Best dated October 14, 2004, a disclosure and acknowledgment form and a copy of Dr. Weiss’s report dated October 15, 2004. (See the affidavit of Dr. Gary H. Weiss previously filed with this court).
5. After receiving the billing of Dr. Weiss, Doug Lacey, a medical claims representative of Defendant contacted Dr. Weiss by telephone on November 17, 2004 indicating that Defendant had received the billing. Further, Mr. Lacey stated that Defendant was going to authorize payment but that Defendant wished to change the CPT code from 99204 to 99203. Dr. Weiss disagreed with this “downcoding.” However, Mr. Lacey indicated that Dr. Weiss would still have the opportunity to contest the downcode in the future. (See the affidavit of Dr. Gary H. Weiss previously filed with this court).
6. On November 18, 2004, Mr. Lacey sent correspondence to Dr. Gary H. Weiss regarding the telephone conversation between him and Dr. Weiss. However, Mr. Lacey’s correspondence indicated specifically that “[t]he documentation submitted support level of service that was billed. The documentation does support the level of service that was billed.” (See attachments to the affidavit of Dr. Gary H. Weiss previously filed with this court).
7. Further, in his correspondence to Dr. Weiss, Defendant’s agent, Doug Lacey, cited a portion of Florida Statutes 627.736(5)(b)(1)(e) in explaining Progressive’s decision to “downcode” the service as follows:
. . .to facilitate prompt payment of lawful services, an insurer may change codes it determines to have been improperly or incorrectly upcoded or unbundled, and may make payment based upon the changed codes, without affecting the right of the provider to dispute the change by the insurer. . .
(Emphasis added. See attachments to the affidavit of Dr. Gary H. Weiss previously filed with this court).
8. Progressive “downcoded” the service from 99204 to 99203. Then, instead of allowing the $400.00 billed by Dr. Weiss, Defendant only allowed $178.00 and sent a check to Dr. Weiss in the amount of $178.00. (See the attached Explanation of Benefits attached to the affidavit of Dr. Gary H. Weiss previously filed with this court).
9. On November 26, 2004, Dr. Weiss sent a demand for payment, pursuant to Florida Statutes 627.736(11) to Defendant.
10. After payment of the remaining amounts was not provided, Dr. Weiss filed suit for these amounts in the instant law suit.
11. Defendant was served with the Complaint, including initial interrogatories, request for production, and requests for admissions on January 19, 2005.
12. On February 7, 2005, counsel for Defendant served his notice of appearance. On that same day Defendant’s counsel, on behalf of Defendant, sent discovery to Plaintiff including Interrogatories and Request to Produce as well as “Defendant’s Motion to Strike Plaintiff’s Discovery Requests Served With Small Claims Complaint on Unrepresented Party.”
13. As of October 24, 2005, Defendant had yet to provide responses to Plaintiff’s First Request for Admissions, First Interrogatories, or First Request to Produce.
14. On April 6, 2005, Defendant filed “Defendant’s Motion for Summary Judgment and for Fla. Stat. 57.105 Fees” claiming, that because Plaintiff’s acknowledgment and disclosure form submitted to Defendant was not the one adopted by the Office of Insurance Regulation that Defendant was never put on notice of the claim and that it was therefore entitled to summary judgment.
The language of the form submitted by Dr. Weiss was as follows:
DISCLOSURE AND ACKNOWLEDGMENT PURSUANT TO SECTION 627.736(5)(e), Fla. Stat. (2003)
I, Judith Best, understand and acknowledge that I have both the right and an affirmative duty to confirm that health care services claimed to have been provided to me by Gary H. Weiss, D.C., DABFE were, in fact, rendered, and I hereby attest that:
* I have personally reviewed the attached CMS 1500 form and the services indicated thereon were actually rendered to me on 10-14-04.
* I was not solicited by any person to seek any services from Gary H. Weiss, D.C., DABFE;
* The health care services rendered were explained to me, and I have signed this form freely and with my informed consent.
I further understand that if I notify my insurer in writing of a billing error, I may be entitled to a certain percentage of a reduction in the amounts paid by my insurer.
The document was then signed and dated by Judith Best and Gary H. Weiss, D.C., DABFE, October 14, 2004.
15. On May 25, 2005, the parties held mediation as required by this Court.
IT IS HEREBY ORDERED AND ADJUDGED:
a. O.P. Diagnostic Center a/a/o Osvel Cancio v. U.S. Security Insurance Company, (11th Judicial Circuit), 12 Fla. L. Weekly Supp. 483b, is distinguished from the case at bar in that Dr. Weiss did in fact provide a form, albeit one self generated and not including the declarations of the provider included on the form authored by the Office of Insurance Regulations.
b. This Court concludes Plaintiff, Gary H. Weiss, D.C., DABFE, provided sufficient notice to Defendant, Progressive Express Insurance Company, whereby a form, though not the form “Standard Disclosure and Acknowledgment Form” authored by the Office of Insurance Regulation, but one titled “Disclosure and Acknowledgment Pursuant to Section 627.736(5)(e), Fla. Stat. (2003)” and recreated above was provided, which provides substantial compliance with Florida Statutes 627.736. See Hollywood Diagnostics Center, Inc. as assignee of Joseph Thompson v. Southern Group Indemnity, Inc., (Miami-Dade County, Case Number 04-18074 SP 05, June 16, 2005) [12 Fla. L. Weekly Supp. 1180a].
c. Further, Defendant, by its own actions has demonstrated that, contrary to its current position, it received written notice of a covered loss with the submission of the bill, medical records, acknowledgment and disclosure form and assignment of benefits from Dr. Weiss given that is approved payment, albeit for a reduced amount and for a lower code of service to Dr. Weiss.
d. Further still, Progressive did not advise Dr. Weiss, upon his submission of billing that it would not process his bill because of information it needed, namely the approved acknowledgment and disclosure form authored by the Office of Insurance Regulation. Progressive did not put Dr. Weiss on notice, when it received his demand letter, that Progressive did not consider itself put on written notice of a covered loss based on the technicality it was hiding behind. Had Progressive advised Dr. Weiss when it initially received his bill that payment would not be considered due to the submission of a non-approved acknowledgement and disclosure form, Dr. Weiss could have had the opportunity to remedy any defect Progressive asserted. See World Health Chiropractic and Rehabilitation, Inc. as assignee of Elaine Houghton v. Nationwide Property and Casualty Insurance Company, (18th Judicial Circuit, March 17, 2005) 12 Fla. L. Weekly Supp. 594b.
e. Defendant’s Motion for Summary Judgment is hereby DENIED.
