13 Fla. L. Weekly Supp. 1000b
Insurance — Personal injury protection — Coverage — Medical expenses — Overdue bills — Explanation of benefits — Tolling of period to pay or reject claim — Where insurer made timely request for additional documentation regarding claim in EOB and received no response from medical provider, time for payment of claim was tolled, and claims were not overdue and collectible at time of filing suit
PROFESSIONAL MEDICAL GROUP, INC., (a/a/o Jurden J. Ugalde), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-10561 SP 25 (2). July 11, 2006. Lawrence D. King, Judge. Counsel: Armando A. Brana, for Plaintiff. Reuven T. Herssein, Adams & Diaco, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT PURSUANT TO F.S. §627.736(6)(b) (2003)
THIS MATTER having come on to be heard on June 09, 2005, on Progressive Express Insurance Company’s (“PROGRESSIVE”) Motion For Final Summary Judgment predicated upon the request for additional medical documentation made by PROGRESSIVE in its explanation of benefits pursuant to F.S. § 627.736(6)(b).
FINDING OF FACTS:
1. Professional Medical Group, Inc., (a/a/o Jurgen Ugalde) (“Plaintiff”) sued PROGRESSIVE for breach of contract pursuant to F.S. § 627.736, — the Personal Injury Protection Statute (“PIP”) alleging that PROGRESSIVE, wrongfully denied and in two (2) instances reduced the bills sent to PROGRESSIVE — for various medical services allegedly performed on Jurgen Ugalde from May17, 2002 through August 15, 2002.
2. Upon receipt of the bills from the Plaintiff, PROGRESSIVE timely processed the claim, and then sent payment to Plaintiff along with an explanation of benefits forms.
3. The explanation of benefits forms sent to the Plaintiff stated as follows:
The notes you have presented are not acceptable progress notes. You are providing notes on a weekly basis saying that the symptoms, objective and subjective findings are exactly the same each three days you treat the patient. You are doing this on each and every patient you treat and present bills to us. This is not acceptable medical documentation, it is being done by a massage therapist, not a physician and even if done by a physician, this is not proper documentation per any medical board. When you present “daily” notes itemizing symptoms and treatments we will be glad to consider this claim again. We also would appreciate a copy of your massage therapy establishment license as this service is being done on behalf of Professional Medical Group, a corporation which would require a massage therapy establishment license to do these services using a massage therapist when the physician does not own the practice. The services are being performed by your employee Mike Penate for Professional Medical, they are not being performed by Mike Penate for the physician who is also an employee. Please comply with the Florida Statutes and reasonable documentation rules set up by all medical boards and we will then be in a position to further review this claim.
This is a report of all charges and coding that you have presented to Progressive Insurance. It has been reviewed by a physician of the same licensed chapter as the treating or ordering physician. This report has been based on information you have provided as well as our obligation to pay reasonable expenses for medically necessary care. If you feel that you have facts concerning coding or medical treatment that you have not presented; please return a copy of this report which explains the benefits allowed with your corrected information or other documentation clearly outlined that would allow the review of a line charge that was denied or changed. In order to secure proper documentation of needed information for our insured’s file, phone correction will not be accepted. If you wish to appeal this decision, please submit; 1) the Explanation of Benefits (EOB). 2) Reason you disagree. 3) Medical Records. [Emphasis Added]
4. On or about October 2, 2002, the Plaintiff filed the instant law suit, without ever responding to the request for the additional documentation that PROGRESSIVE requested in its explanation of benefits forms.
RULING OF LAW:
5. Florida Statute Section §627.736(6)(b) states that “If an insurer makes a written request for documentation or other information within 30 days after having received notice of the amount of a covered loss. . .the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay within 10 days after the insurer’s receipt of the requested documentation or information. . .”[Emphasis Added]
6. Pursuant to F.S. §627.736, PROGRESSIVE was entitled to request additional medical reports in order to evaluate their obligation to pay reasonable expenses for medically necessary care.
7. Where the insurer made a timely request for additional documentation pursuant to §627.736(6)(b), thus tolling the time for payment of the claims, and having received no responses from the plaintiff, the claims that were the subject of the suit were not “overdue” at the time of the filing of the complaint and are not collectible as the law suit is premature.
8. Florida Courts have consistently granted summary judgment in the insurer’s favor when an insurer requests additional information or documentation to support the treatment, via an explanation of benefits forms, and where the medical provider has not responded to that request. Further, the Courts have held that where the request was not complied with, the law suit was premature. See Drew Medical Inc., (a/a/o Belen Vazquez) vs. Progressive Express Insurance Company, 12 Fla L. Weekly Supp. 403b (Fla. 18th Judicial Circuit January 2005). “This Court finds that as Plaintiff had not provided any of the documentation requested via the EOB (explanation of benefits) by Progressive prior to filing of the lawsuit, the amount at issue had not become overdue pursuant to §627.736(4) & (6)(b), Fla. Stat. and thus Plaintiff’s lawsuit was premature.” Id.
9. In Wellington Chiropractic Center of Palm Beach Inc., vs. Nationwide Mutual Insurance Company, 11 Fla. L. Weekly Supp. 929b. (Fla. 15th Judicial Circuit August 2004), the Court cited Kaminester v. State Farm Mutual Auto. Ins. Co.,775 So. 2d 981 (Fla. 4th DCA 2000), for the proposition that under Fla. Stat. §627.736(4) & (6)(b) an insurer can request additional information and documentation on details on what “therapeutic activities” had been provided.
10. Moreover, the Wellington decision dispelled two (2) arguments that Plaintiff made in the instant case: first, that the records provided with the initial bill should be sufficient and that the Plaintiff not be required to submit additional documentation which it contends would be merely duplicative of that already provided; and second, that any demand letter by implication was a response to PROGRESSIVE’ s request under §627.736(6)(b) so as to allow the filing of the suit.
11. Ultimately, the Wellington Court found that any pre-suit demand letter did not meet the requirements under §627.736(6)(b) to allow the filing of the suit. Furthermore, the Court ruled that §627.736(6)(b) requires a provider to directly respond to timely requests for more information or documentation and that the provider may not do so by omission or implication.
12. The Wellington Court cited Sharon Byrant vs. Direct General Insurance Company,11 Fla. L. Weekly Supp. 274a (Fla. 7th Judicial Circuit January 2004) for the proposition that the purpose of the recent amendments to the PIP statute which standardized the submission of PIP claims was to reduce ambiguity as to what treatments were rendered to a patient, and to make it easier for insurers to understand exactly for what medical services compensation was being sought. [Emphasis Added]
13. Another case directly on point with the facts in the instant case is Physicians Extended Services (a/a/o Christina L. Nelson) vs. Progressive Express Insurance Company,11 Fla. L. Weekly Supp. 649b (Fla. 9th Judicial Circuit April 2004). Here, the insurer via its explanation of benefits requested additional documentation in its explanation of benefits form. The provider did not respond to the request prior to filing the suit. The Court found that where the insurer made a timely request for additional documentation pursuant to §627.736(6)(b), thus tolling the time for payment of the claims, and having received no responses from the plaintiff, the claims that were the subject of the suit were not “overdue” at the time of the filing. The Court granted the summary judgment in the insurer’s favor.
14. Similarly, in Doctors Pain Management (a/a/o Dalon Finley) vs. Progressive Auto Pro Insurance Company, 11 Fla. L. Weekly Supp. 1071b (Fla. 9th Judicial Circuit August 2004), the Court ruled that where the Defendant made timely request for additional information on its explanation of benefits, and when the Plaintiff did not respond to the request prior to filing the law suit, the claims that were the subject of the suit were not “overdue” at the time of the filing of the complaint and were not collectible.
15. In the instant case, pursuant to §627.736(6)(b), where PROGRESSIVE timely requested the additional documentation in its explanation of benefits, and where the Plaintiff did not respond to this request, as a matter of law, the claims in the law suit as filed would not be “overdue” and the suit would be premature.
WHEREFORE it isORDERED AND ADJUDGED
1. PROGRESSIVE’S Motion For Final Summary Judgment is hereby GRANTED.
2. The Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go forth without day.
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