15 Fla. L. Weekly Supp. 389a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — D&A form that did not list services rendered and was not signed by medical provider was insufficient — Insurer did not waive D&A form defense by failing to furnish explanation of benefits denying claim based on insufficient form where insurer asserted defense in all pleadings, and EOB did state that insurer might raise defense of failure to comply with section 627.736(5) — Because D&A form requirement is applicable to first date of service only, failure to properly complete form is not fatal to entire claim
ORTHOPEDIC REHAB OF HALLANDALE, INC. F/K/A R. L. MEDICAL CENTER, INC., Florida Corporation (assignee of Rossin, Andrey), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-16012 COCE 54. February 8, 2008. Lisa Trachman, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Reuven T. Herssein, Law Offices of Herssein & Herssein P.A., North Miami, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on hearing on January 8, 2008 on Defendant’s Motion for Summary Judgment alleging that the Plaintiff failed to submit a proper disclosure and acknowledgment form and that this failure is fatal to the Plaintiff’s claim. The Court, having reviewed the motion, the Court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a P.I.P. case. Defendant seeks summary judgment as to all services alleging that the Plaintiff failed to submit a proper disclosure and acknowledgment form and, accordingly, that Defendant has not been furnished with written notice of a covered loss.
In this case, the Plaintiff’s form was not signed by the Plaintiff’s representative and did not list the services rendered.
Plaintiff responds that Defendant waived the defense by failing to furnish a proper explanation of benefits complaining of the alleged defect and that, at most, the disclosure and acknowledgment form requirement would only apply to the first date of service based upon the terms of Florida Statute s. 627.736(5)(e)(9).
Defendant responds that Plaintiff’s assertion of waiver does not apply because Florida Statute s. 627.736(4)(b) allows that insurer to raise the defense at any time, even after payment of the claim and that the failure to submit a proper standard disclosure and acknowledgment form is not a curable defect, as the Provider cannot go back and the failure to submit a proper disclosure and acknowledgment form is fatal to all services submitted for the claim as the Defendant is not on notice of a covered loss under Florida Statute s. 627.736(4)(b).
Legal Conclusion: The court finds that the disclosure and acknowledgment form in the instant case was insufficient as it lacked any indication of what services were rendered, and was not signed by the provider. Accordingly the services for the patient’s initial visit with the Plaintiff are not compensable.
The court does not find Plaintiff’s waiver argument applicable in this particular case. The Defendant, from the onset of this case, alleged in all pleadings that it was asserting the defense of improper disclosure and acknowledgment form. And while it’s true that the defendant did not indicate in its explanation of benefits that it was denying the claim based upon an improper disclosure and acknowledgment form, the Defendant’s explanations of benefits specifically indicated that it might raise the defense of failure to comply with F.S. s. 627.736(5). Florida Statutes 627.736(4)(b) permits the insurer to raise this defense even after payment of the claim. See F.S. s. 627.736(4)(b) (“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 30-day time period for payment set forth in this paragraph.”) As such, Defendant is entitled to partial summary judgment as to all charges billed for the patient’s initial date of service.
As to subsequent dates of service, the court denies summary judgment. The pleadings on record contained a patient log signed by the patient, in chronological order by date of service, consistent with the services being rendered to the patient as claimed. Thus, pursuant to Florida Statute s. 627.736(5)(e)(9), the standard disclosure and acknowledgment form requirement is for the first date of service only. Accordingly, the failure to submit a proper disclosure and acknowledgment form would be fatal only to the first date of service.
This court finds that pursuant to Florida Statute s. 627.736(5)(e)(9) the disclosure and acknowledgment requirement applies only to the first date of service and not properly completing the form is not fatal to the entire claim. Specifically, F.S. s. 627.736(5)(e)(9) states:
The requirements of this paragraph apply only with respect to the initial treatment or service of the insured by a provider. For subsequent treatments or service, the provider must maintain a patient log signed by the patient, in chronological order by date of service, that is consistent with the services being rendered to the patient as claimed.
For dates of service after the initial treatment or service, the statute sets forth separate and distinct requirements — namely, a chronological patient log. Defendant has not established non-compliance with this provision. This decision shall not preclude the Defendant from asserting at a later hearing that the patient log requirements indicated above were not met in this case, nor does this decision preclude the Defendant from raising any other allowable defenses as to the subsequent dates of service.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is Granted in Part and Denied in Part. Specifically, the court grants partial summary judgment as to the Plaintiff’s first date of service as the standard disclosure and acknowledgment form was left blank as to what services were rendered and was not signed by the medical provider.
As to the remaining dates of service the court denies summary judgment based upon the specific language of Florida Statute s. 627.736(5)(e)(9) which provides that the disclosure and acknowledgment form is required only for the first date of service. Defendant is not precluded from presenting evidence at a later hearing demonstrating that the Plaintiff failed to maintain the signed daily log required for subsequent services under F.S. s. 627.736(5)(e)(9), or to raise any other allowable defense concerning the subsequent dates of service.
