15 Fla. L. Weekly Supp. 88a

Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — Medical provider’s failure to maintain massage establishment license at time massage treatments were performed renders treatments unlawful and noncompensable — Where provider was never certified to supervise certified chiropractic physician’s assistants who examined insured and made recommendations for her treatment, and CCPAs were never authorized to work under supervision of provider, treatments were unlawful and noncompensable — Treatments were not rendered unlawful by failure to obtain county occupational license

WILLIAMS A. HALL, D.C. a/a/o LARIXA ESPINOSA, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-2436 CC 24 01. October 2, 2007. Darrin P. Gayles, Judge. Counsel: Stuart Yanofsky, Stuart Yanofsky, P.A.; and Jose Dapena, Jose Dapena, P.A., for Plaintiff. William M. Gilmore, Cole, Scott & Kissane, P.A., for Defendant.

ORDER ON CROSS MOTIONS FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT

This action was heard in Chambers on August 24, 2007, pursuant to Plaintiff’s Motion for Final Judgment and Defendant’s Cross-Motion for Final Summary Judgment. Having considered Plaintiff’s Motion for Summary Judgment, Defendant’s Cross Motion for Summary Judgment, the argument of counsel, all evidence in the record, and being otherwise advised in the premises, the Court hereby enters final summary judgment in favor of the Defendant for the reasons more fully set forth below.

I. INTRODUCTION

This is an action to recover Personal Injury Protection (“PIP”) benefits pursuant to Florida Statute, Section 627.736. Plaintiff’s assignor, Larixa Espinosa (“Espinosa”), was insured under a PIP policy issued by Mercury Insurance Company of Florida. During the months of December, 2004, through February, 2005, Espinosa visited a chiropractic clinic operating in the name of William A. Hall, D.C. (“Plaintiff”), located at 12963 W. Okeechobee Road, Suite #2, in Hialeah Gardens, Florida (the “Establishment”). Plaintiff issued bills to Defendant for each of the services rendered to Espinosa at the Establishment. The total amount billed to Defendant was $10,755.00, and included charges for, inter alia, massage and hydromassage, as defined by the American Medical Association’s Current Procedural Terminology (“CPT”). Defendant did not make payment for the charges.

Plaintiff, William A. Hall, D.C. filed this action against Mercury Insurance Company of Florida (“Defendant”) pursuant to an assignment of benefits executed by Espinosa, to collect the unpaid charges. Defendant asserted the following affirmative Defenses to payment:

(1) Mercury properly, and in strict compliance with F.S. 627.736, withheld payment for any medical expenses allegedly incurred by Plaintiff, and therefore, Mercury owes no further payment of benefits to Plaintiff, or on behalf of Larixa Espinosa.

(2) Plaintiff is not the real party in interest with respect to any bills for medical treatment for which a valid assignment has not been given by Plaintiff’s alleged assignor, and therefore, any recovery by Plaintiff should be barred.

(3) Defendant is not responsible for the amount of any deductible applied to Plaintiff’s bills or which is applicable to the insured’s policy of insurance, therefore, Defendant owes no further payment of benefits to Plaintiff, or on behalf of Larixa Espinosa.

(4) Plaintiff failed to maintain a Miami-Dade County and a City of Hialeah Gardens occupational license as required under Florida law and, as such, the medical services allegedly rendered to Larixa Espinosa were unlawful, therefore, pursuant to Florida Statute §627.736(5)(b)(1), Defendant owes no further payment of benefits to Plaintiff, or on behalf of Larixa Espinosa.

(5) Plaintiff failed to maintain a massage establishment license required under Florida law and, as such, all of the medical services allegedly rendered to Larixa Espinosa were unlawful, therefore, pursuant to Florida Statute §627.736(5)(b)(1), Defendant owes no further payment of benefits to Plaintiff, or on behalf of Larixa Espinosa.

(6) The certified chiropractic physician’s assistant rendering treatment to Larixa Espinosa at Plaintiff’s facility exceeded the scope of the duties lawfully permitted under his license pursuant to Florida Statute Chapter 460, Florida Administrative Code Chapter 64B2-18, and the Board of Chiropractic Medicine, as such, the medical services allegedly rendered to Larixa Espinosa were unlawful, therefore, pursuant to Florida Statute §627.736(5)(b)(1), Defendant owes no further payment of benefits to Plaintiff, or on behalf of Larixa Espinosa.

At the hearing on this Motion, the Court struck Defendant’s First Affirmative Defense for lack of adequate pleading. Defendant voluntarily withdrew its Second Affirmative Defense with prejudice. The Court reserved ruling upon Defendant’s Third Affirmative Defense concerning Plaintiff’s alleged failure to satisfy the policy deductible. Having already considered the undisputed facts and law pertaining to Defendant’s Fifth and Sixth Affirmative Defenses, however, the Court need not reach the merits of Defendant’s Third Affirmative Defense. As such, Defendant’s First, Second, and Third Affirmative Defenses are denied as moot. Having resolved these preliminary issues, the Court turns to the merits of Defendant’s Fourth, Fifth, and Sixth Affirmative Defenses.

II. ANALYSIS

Defendant asserts that no benefits are owed to Plaintiff on the basis of Florida Statute, Section 627.736(5)(b)(1)(b) and Section 627.736(5)(d). Section 627.736(5)(b)(1)(b) (2004), states that “An insurer or insured is not required to pay a claim or charges . . . for any service or treatment that was not lawful at the time rendered.” Furthermore, Section 627.736(5)(d) (2004) provides that, “No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services.” The court also notes that Florida Statute, Section 627.732 was amended in 2003 to specifically define the terms “lawful” and “lawfully.” Under Florida Statute, Section 627.732(11), “ ‘Lawful’ or ‘lawfully’ means in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.”

Defendant asserts that Plaintiff’s treatments and charges were unlawful at the time rendered based upon three separate factual predicates: (A) Plaintiff’s Establishment did not possess a Massage Establishment License at the time of treatment (Affirmative Defense Five); (B) Plaintiff’s Certified Chiropractic Physician’s Assistants (“CCPAs”) acted beyond the scope of their license at Plaintiff’s Establishment (Affirmative Defense Six); and (C) Plaintiff did not possess occupational licenses from the City of Hialeah Gardens and Miami-Dade County, at the time of treatment (Affirmative Defense Four). In the following subsections, the Court considers the factual and legal predicates in support of Defendant’s claim that the treatments were unlawful under Florida Statute, Sections 627.736(5)(b)(1) and 627.736(5)(d).

A. Lack of Massage Establishment License

Based upon the undisputed facts in the record, including, inter alia, admissions contained in Plaintiff’s Better Responses to Defendant’s Request For Admissions, Plaintiff employed a licensed massage therapist at 12963 W. Okeechobee Road (the “Establishment”). Over the course of December, 2004, to February, 2005, the massage therapist performed, and Plaintiff billed to Defendant various charges for massage as defined by the American Medical Association’s Current Procedural Terminology. The record reveals, however, that at no time during these treatments was the Establishment ever licensed by the Florida Department of Health as a “Massage Establishment.” In fact, the Florida Department of Health issued a “Certificate of Non-Licensure” for the Establishment, and Plaintiff has admitted that it did not possess a Massage Establishment License at the time it performed massage upon Plaintiff’s assignor, and billed Defendant for massage.

Florida Statute, Section 480.043(1) provides that no massage establishment shall be allowed to operate without a license granted by the Florida Department of Health in accordance with rules adopted by the Board of Massage Therapy. Florida Administrative Code Chapter 64B7-26.002 also provides that each establishment providing massage therapy to the general public shall obtain a license from the Department of Health in accordance with Florida Statute, Section 480.043(1). Chapter 64B7-26.001 of the Florida Administrative Code defines a massage “establishment” as “a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation.”

Based upon the undisputed facts and law, Plaintiff performed and billed for massage without obtaining a massage establishment license in violation of Florida Statute, Section 480.043(1) and Florida Administrative Code Chapter 64B7-26.002. By failing to obtain a massage establishment license, Plaintiff circumvented the requirement that the facility meet various heath and safety requirements delineated in Florida Administrative Code, Chapter 64B7-26.003. These requirements include, inter alia, proof of proper sanitation, waste removal, facilities, rodents, ventilation, and financial responsibility. Id.

Plaintiff’s failure to maintain a massage establishment license at the time massage was performed renders the treatments unlawful. It is clear that Florida Statute, Section 480.043(1) and Florida Administrative Code Chapter 64B7-26.002 are, “law[s] related to the provision of medical services or treatment,” and thus, that Plaintiff’s failure to comply with those laws renders the treatments “unlawful,” as the term is defined in Florida Statute, Section 627.732(11) (2003). Moreover, multiple courts have held that massage performed under such circumstances renders the massage unlawful and noncompensable under Florida Statute, Section 627.736(5). See, e.g., State Farm Fire & Casualty Co. v. West Dixie Rehabilitation and Medical Center a/a/o Louisa Ponthieux, 11 Fla. L. Weekly Supp. 788b, Case No. 02-394 AP (Fla. 11th Jud. Cir. App. 2004) (“We find that Ponthieux’s treatment was unlawful for the purposes of § 627.736(5)(a), Fla. Stat. (2001) because West Dixie did not have a massage establishment license.”); Medical Coral Way Ctr. a/a/o Curbelo Sebastian v. Integon Indemnity Corp., 14 Fla. L. Weekly Supp. 786a, Case No. 04-9858 SP 26 (Fla. 11th Jud. Cir. 2006); see also Physiatric Pain & Medical Rehabilitation Clinic a/a/o Kunta Braswell v. Progressive Auto Pro Insurance Co., Fla. L. Weekly Supp. 584a, Case No. 05-CC-2060 (Fla. 9th Jud. Cir. 2007). This Court’s conclusion that the massage treatments were unlawful is further supported by the fact that operating a massage establishment without a massage establishment license is a crime punishable as a first degree misdemeanor under Florida Statute, Section 480.047(2), and by monetary fines and/or the permanent suspension or revocation of a chiropractor’s license to practice.

For the foregoing reasons the Court finds that Defendant is entitled to judgment as a matter of law on its Fifth Affirmative Defense. Each of Plaintiff’s charges for massage (including hydromassage) are unlawful and noncompensable.

B. CCPAs Acting Beyond Scope of License

Based upon the undisputed facts in the record, including, inter alia, admissions contained in Plaintiff’s Better Responses to Defendant’s Request For Admissions, Plaintiff utilized two Certified Chiropractic Physician’s Assistants at the Establishment, to wit, Victor Castillo (“Castillo”) and Ayhem Sabry (“Sabry”). Neither Sabry nor Castillo were registered with the Department of Health to work under the supervision of the Plaintiff. Nevertheless, Sabry and Castillo examined Plaintiff’s assignor and made various treatment recommendations which were immediately implemented on the same day by Plaintiff’s massage therapist. It is undisputed that neither the Plaintiff, nor any other chiropractic physician licensed under Chapter 480 personally examined or physically participated administration of medical treatment to Plaintiff’s assignor. Instead, Plaintiff’s participation in the treatment of Plaintiff’s assignor was limited to countersigning treatment forms, post hoc, before they were submitted to Defendant for payment.

Chapter 64B2-18 of the Florida Administrative Code governs a Florida chiropractor’s ability to utilize a certified chiropractic physician’s assistant in the course of his or her practice. A “certified chiropractic physician’s assistant” (“CCPA”) refers to:

“allied health personnel, certified by the Department upon approval by the Board, who are functioning in a dependent relationship with a supervising physician and who are performing tasks or combinations of tasks traditionally performed by the physician. A certified chiropractic physician’s assistant may perform case histories, diagnostic testing, physical examinations, and therapeutic procedures under indirect supervision. However, a certified chiropractic physician’s assistant cannot be assigned any tasks requiring . . . the rendering of diagnostic results or interpretations, or the rendering of treatment advice. . .

F.A.C. § 64B2-18.001(5) (emphasis added). The phrase “supervising physician” is a term of art within the Code, and specifically refers to:

any licensed chiropractic physician or group of physicians who is approved and certified by the Board to provide supervision for the certified chiropractic physician’s assistant and/or registered chiropractic assistant, and who assumes legal liability for the services rendered by such assistants.

F.A.C. § 64B2-18.001(4) (emphasis added).

Moreover, under Chapter 64B2-18.005 of the Code, before a chiropractor may utilize a CCPA he must comply with a strict certification procedure:

(1) Any chiropractic physician desiring to supervise, employ or work with a certified chiropractic physician’s assistant shall make an application to the Board on forms approved by the Board.

(2) Upon approval of an application, the Board shall certify the physician or group of physicians to supervise a certified chiropractic physician’s assistant. . .

F.A.C. § 64B2-18.005 (emphasis added).

It is undisputed that Plaintiff was never “approved and certified by the Board to provide supervision” to Castillo and Sabry; and conversely, that Castillo and Sabry were never authorized by the Department of Health to work under the direct or indirect supervision of the Plaintiff. The Florida Department of Health issued a Certification which stated as follows:

. . .[T]he records of this office indicate that certified chiropractic physician’s assistants Ayhem Sabry [and] Victor Ivan Castillo Ramos have never been authorized by this department to work under the direct or indirect supervision of William Alden Hall, D.C. . .

Since Castillo and Sabry were never approved by the Department of Health to work under Plaintiff’s supervision, it is axiomatic that the “dependent relationship with a supervising physician” contemplated by Florida Administrative Code, Chapter 64B2-18.001(5) did not exist at the time of treatment. In fact, the record reveals that Castillo and Sabry never even made an application to the Department of Health to work under Plaintiff’s supervision.¹ As such, the Board never had an opportunity to assess the manner in which Plaintiff proposed to supervise Castillo and Sabry. See F.A.C. § 64B2-18.007(2) (“If [the CCPA] is to perform away from the supervising physician, these duties must be clearly specified in the supervising physician’s application to the Board.”). Moreover, since Plaintiff never submitted an application to supervise Castillo and Sabry, Plaintiff never “assume[d] legal liability for the services rendered” by these CCPAs in contravention of Chapter 64B2-18.001(4). This is especially significant where, as here, the record reflects that Plaintiff already avoided the financial responsibility requirements promulgated under Florida Statute, Section 480.043 by failing to apply for and acquire a massage establishment license, and where Plaintiff did not maintain medical malpractice insurance.

Plaintiff is unable to feign ignorance of the Department of Health’s mandatory certification procedures for the utilization of CCPAs. The record reveals that an application to the Department of Health to work as a CCPA, or to supervise a CCPA, requires both the CCPA and the supervising physician to sign an affidavit in which both swear to comply with all rules delineated in Chapter 64B2-18. It is undisputed that Plaintiff countersigned an application and affidavit for an unrelated CCPA (who did not participate in the treatment of plaintiff’s assignor) less than two months before the date of the first examination of plaintiff’s assignor. As such, Plaintiff knowingly utilized CCPAs Castillo and Sabry without obtaining the consent of the Department of Health.

Based upon these facts, Defendant asserts that Plaintiff’s medical bills were unlawful and non-compensable under Florida Statute, Section 627.736(5)(b)(1). As noted above, Florida Statute, Section 627.732(11) (2003) defines “unlawful” as “in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.” Given the undisputed facts discussed above, Plaintiff’s treatment of Plaintiff’s assignor was not substantially compliant with Chapter 64B2-18. Moreover, since it is undisputed that Plaintiff conducted no independent examination of the Plaintiffs, but instead relied solely upon the observations and treatment recommendations of Castillo and Sabry, each of the treatments and charges billed to the Defendant were tainted with Castillo’s and Sabry’s unauthorized conduct, thereby rendering the charges unlawful under Florida Statute, Section 627.732(11).

This conclusion is further supported by the fact that Chapter 64B2-18.006 expressly penalizes chiropractors for “allowing an employee to hold himself or herself out as a certified chiropractic physician’s assistant, in any manner or form, when . . . the chiropractic physician or group of physicians have not been certified by the Board as supervising physicians.” The undisputed facts reveal that the entire course of treatment at issue in this case was derived from Castillo and Sabry holding themselves out as CCPAs when, in fact, Plaintiff was not “certified by the Board as [the] supervising physician[ ],” in direct contravention of Chapter 64B2-18.006.

Lastly, there is no dispute that Chapter 64B2-18 of the Florida Administrative Code is a “law related to the provision of medical services or treatment,” as set forth in Florida Statute, Section 627.732(11) (2003). Chapter 64B2-18 establishes and governs the “dependent relationship” between the CCPA and the individual approved and certified by the Board to serve as a “supervising physician.” This certification procedure mandated by Chapter 64B2-18 has unambiguously been implemented as a public welfare measure to ensure that the delegation of “tasks traditionally performed by the physician” from the supervising physician to the CCPA, are monitored and regulated by the Department of Health. See, e.g., 64B2-18.0007(2) (“The assistant must function in a reasonable proximity to the supervising physician.”). By creating this certification procedure, it is apparent that the Department of Health reserved for itself the ability to weigh, in each instance, whether the proposed “dependent relationship” contemplated under Chapter 64B2-18.001(5) comports with the Department’s objectives and goals pertaining to the administration of health care services within the state.

For the foregoing reasons the Court finds that Plaintiff’s treatments were unlawful and non-compensable under Florida Statute, Section 627.736(5)(b)(1); and thus, the Defendant is entitled to judgment as a matter of law on its Sixth Affirmative Defense.

C. Lack of Occupational Licenses

As its Fourth Affirmative Defense, Defendant asserts that Plaintiff’s charges are unlawful and noncompensable under Florida Statute, Section 627.736(5)(b)(1) on the basis that Plaintiff failed to maintain a Miami-Dade County and a City of Hialeah Gardens occupational license for the location where the medical services were rendered to Plaintiff’s assignor. Without reaching the evidence, the Court rejects this Defense as a basis to demonstrate the Plaintiff’s charges are unlawful and noncompensable. As noted above, Florida Statute, Section 627.732 specifically defines “lawful” and “lawfully” as “in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment” (emphasis added). Here, the Hialeah Gardens and Miami-Dade County ordinances are measures directed to collecting tax revenues for the respective local governments. Thus, unlike its arguments with respect to Florida Statutes, Section 480.043 and Chapter 64B2-18 of the Florida Administrative Code, Defendant has failed to demonstrate that the Miami-Dade County and City of Hialeah Gardens ordinances are “related to the provision of medical services.” Moreover, the violations alleged by Defendant here are merely breaches of local government ordinances, not “state” or “federal” laws, as required by Section 627.732(11). It is reasonable to presume that if the Florida Legislature had wanted to include “local ordinances” within the scope of the term “lawful” under Chapter 627, it would have.

Given the foregoing, the Court declines to hold that Plaintiff’s treatments were unlawful merely because Plaintiff did not possess occupational licenses as required by the local ordinances of the City of Hialeah Gardens and Miami-Dade County.

III. FINAL JUDGMENT

Based upon the foregoing, it is hereby

ORDERED and ADJUDGED as follows:

1. Plaintiff’s Motion for Summary Judgment with respect to Defendant’s First Affirmative Defense, the Defense having been stricken, is DENIED AS MOOT.

2. Plaintiff’s Motion for Summary Judgment with respect to Defendant’s Second Affirmative Defense, the Defense having been withdrawn, is DENIED AS MOOT.

3. Plaintiff’s Motion for Summary Judgment with respect to Defendant’s Fourth Affirmative Defense concerning Plaintiff’s failure to obtain a Miami-Dade County and City of Hialeah Gardens Occupational license, is GRANTED. Defendant’s Cross-Motion for Summary Judgment on its Third Affirmative Defense is DENIED.

4. Plaintiff’s Motion for Summary Judgment with respect to Defendant’s Fifth Affirmative Defense concerning Plaintiff’s failure to maintain a Massage Establishment License is DENIED. Defendants’ Cross Motion for Summary Judgment on its Fifth Affirmative Defense is GRANTED.

5. Plaintiff’s Motion for Summary Judgment with respect to Defendant’s Sixth Affirmative Defense, concerning unlawful use of Certified Chiropractic Physician’s Assistants is DENIED. Defendants’ Cross-Motion for Summary Judgment on its Sixth Affirmative Defense is GRANTED.

6. Plaintiff’s Motion for Summary Judgment with respect to Defendant’s Third Affirmative Defense, concerning whether Defendant is responsible for payment of bills applied to Defendant’s policy deductible, is hereby DENIED AS MOOT.

7. Defendant owes no payment for the charges sued upon in this action based upon this Court’s ruling in paragraphs (4) and (5), above.

8. Final Judgment is hereby entered in favor of the Defendant and against the Plaintiff who shall recover nothing and go hence without day.

9. This Court shall reserve jurisdiction to award attorneys’ fees and costs pursuant to Florida Statute, Section 768.79 and Florida Rule of Civil Procedure 1.442.

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¹Instead, the only applications on file with the Department of Health for Castillo and Sabry list a supervising physician by the name of Stephen Lovell, who took no part in the treatment of Plaintiff’s assignor. By operating under the supervision of a chiropractic physician other than Dr. Lovell — the undisputed facts reveal that this occurred — Castillo and Sabry acted beyond the scope of their license under Chapter 64B2-18.