15 Fla. L. Weekly Supp. 626a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 735a

Insurance — Personal injury protection — Notice of loss — Medical bills — Where medical provider’s professional license number was not on medical bills, insurer was not on notice of covered loss — Failure to raise physician license number deficiency prior to litigation did not waive right to assert that charge was in violation of section 627.736(5)(d)

A KAUFMAN CHIROPRACTIC CLINIC, INC. (Michael Gordon), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2007-CC-6201-XXXX-MB-RB. March 11, 2008. Ted S. Booras, Judge. Counsel: Stanford Topkin, Deerfield Beach, for Plaintiff. Joseph G. Murasko, Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for Defendant.

REVERSED at 16 Fla. L. Weekly Supp. 928c

ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND CONTAINING FINAL JUDGMENT IN FAVOR OF DEFENDANT INTRODUCTION

This is a suit for no-fault benefits by a healthcare provider involving bill reductions. Specifically, Plaintiff’s bills were reimbursed by the Defendant insurance company based upon a formula of 200% allowed under Medicare, Part B, for participating providers.

Defendant has alleged a technical deficiency with the Plaintiff’s bills. Specifically, that the Plaintiff’s bills do not contain, at the time they were submitted, the Professional License Number of the provider, pursuant to Florida Statute Section 627.736(5)(d).

Both parties have filed Motions for Summary Judgment on this issue.

UNDISPUTED FACTS

The following matters are undisputed:

A. The Defendant received the Plaintiff’s bills and processed and paid the bills at reduced rates, despite the fact that the bills did not contain the Professional License Number of the provider;

B. Upon processing the bills the Defendant insurance company sent the Plaintiff a written notice in the form of an explanation of benefits which did not raise the issue of lack of a physician license number but simply advised that bills were processed at a formula of 200% under Medicare;

C. The affidavit of Dr. Kaufman and in support of Plaintiff’s Motion for Summary Judgment establishes that the physician license number was handwritten onto the bills in the pre-suit demand letter process. However, this did not occur until one and a half years after the dates of service sued upon;

D. The Defendant concedes that this is a hyper-technical defense and that it cannot demonstrate prejudice in Plaintiff’s lack of failing to include the physician license number.

ANALYSIS

The requisite language which Defendant relies upon is found at Florida Statute Section 627.736(5)(d) and provides in part, as follows:

“All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “signature of physician or supplier, including degrees or credentials” . . .

The same subsection further states, in the last sentence:

“For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of covered loss or medical bills due unless the statements or bills comply with this paragraph and, unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.”

The Plaintiff opposes the Summary Judgment and further moves for Summary Judgment in its favor arguing:

A. The Defendant has waived the licensure number requirement or at the very least, there is a material issue of fact for the jury as to waiver;

B. The Summary Judgment is premature as the Plaintiff, having already deposed the litigation adjuster, now wishes to depose the adjuster who handled the bills to find out why he or she paid the bills, despite the lack of the requisite physician license number.

The Defendant counters that the legislature has made the physician license number a straight forward black and white requirement and further, has excepted any such waiver argument by the plain language of the statute.

Although the statute does not specifically use the phrase “explanation of benefits”, Florida Statute Section 627.736(4)(b) provides, in relevant part as follows:

“When an insurer pays only a portion of claim or rejects a claim the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time including after payment of the claim or after the thirty day time period for payments set forth in this paragraph (Emphasis added).”

This Court finds the statutory language is clear and unequivocal and either the physician license number is present or it is not present. Further, there is no material issue of fact as to any prejudice to the Defendant as Defendant concedes that it cannot demonstrate such prejudice under these particular facts.

Moreover, to allow the Plaintiff to proceed with a waiver argument for Defendant’s failure to raise the physician license number deficiency prior to litigation would render the plain language of the statute absolutely meaningless. This is not the first time the Florida Supreme Court has had to deal with the plain language of the no-fault statute. Most recently, Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2000).

“As always, legislative intent is the polestar that guides a Court’s inquiry under the no-fault law. Rodriguez, 808 So.2d at 85; Blish, 736 So.2d at 1155. Such intent is derived primarily from the language of the statute. Cason v. Florida Dep’t of Mgmt. Servs, 944 So.2d 306, 312 (Fla. 2006). “Where the wording of the [No-Fault] Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language . . .” Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1095 (Fla. 2005) (quoting Rodriguez, 808 So.2d at 85).”

Allstate Insurance Company v. Holy Cross Hospital, Inc., 961 So.2d 328 at 333 and 334.

Turning back to the present matter, the license number must be on the claim form. Florida Statute Section 627.736(5)(d). If the license number is not present, the carrier is not on notice of a covered loss pursuant to paragraph (4)(b). Florida Statute Section 627.736(5)(d). The carrier is not precluded to assert a charge was in violation of sub-section (5). Florida Statute Section 627.736(4)(b). Such assertion may be made at any time. Florida Statute Section 627.736(4)(b).

WHEREFORE, Defendant’s Motion for Final Summary Judgment is hereby Granted. Plaintiff, A KAUFMAN CHIROPRACTIC CLINIC, INC., shall take nothing by this action and Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, shall go hence without day. The Court reserves jurisdiction to determine attorney’s fees and taxable costs to the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY.