16 Fla. L. Weekly Supp. 110b
Insurance — Personal injury protection — Notice of loss — HCFA claim forms to which outside billing agent has affixed physician’s stamped signature are substantially complete where absence of signature is not material to defeat claim, and affidavit of physician provides that he authorized billing company to affix his signature — Placement of physician’s license number in wrong box on claim form is materially compliant with statute
FORT LAUDERDALE CENTER FOR CHIROPRACTIC CARE, INC. (a/a/o Jerome McCain), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-14491 COCE 53. November 24, 2008. Robert W. Lee, Judge. Counsel: Harley N. Kane, Boca Raton, for Plaintiff. Rory Biggins, Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 20, 2008 for hearing of Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court hereby finds as follows:
Background. On September 19, 2006, the Plaintiff filed its Complaint seeking unpaid PIP benefits. The Defendant has asserted an affirmative defense claiming, in essence, that the Plaintiff submitted bills improperly signed. The Defendant has moved for final summary judgment on this issue.
Conclusions of Law. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical bills submitted to the insurer were completed properly.
Proof of Notice of a Covered Loss. The court considers the Defendant’s defense based on improperly completed HCFA forms. The Defendant argues that because the provider failed to submit properly signed HCFA forms, Progressive has not been provided with written notice of a covered loss as required by the PIP statute. The undisputed record reflects that the HCFA forms at issue were signed by a third party, outside billing agent who affixed the physician’s stamped signature. It is undisputed that the physician never saw these bills before they were submitted to Progressive. Additionally, on some of the bills, the physician’s license number is contained in Box 33 rather than Box 31.
The Defendant argues that the HCFA forms are therefore facially deficient, and as a result, fail to put the insurer on notice of a covered loss as required by Fla. Stat. §627.736(5)(d). The pertinent portion of this statute reads: “an insurer shall not be considered to have been furnished with notice of the loss or medical bills due unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein” (emphasis added).
The statute further requires the use of the CMS 1500 form (or its equivalent), which for a provider other than a hospital must also include the provider’s signature in the signature box.
As pertains to the medical services, the Defendant points out a purported deficiency: the provider allowed an outside billing vendor to affix Dr. Greenberg’s signature in Box 31. In analyzing the Defendant’s argument, the Court first considers the statutory definition of “properly completed.” The Legislature has defined this term as meaning “providing truthful, substantially complete, and substantially accurate responses to all material elements to each applicable request for information or statement” (emphasis added). Fla. Stat. §627.732(13). This definition was added by Fla. Session Law 2003-411, §7, which took effect on October 1, 2003, prior to the dates of service in this case.
No reported appellate case law has apparently yet discussed the parameters of this provision. One treatise explains the provision as follows:
The provision is new and untested, and moreover — painfully unclear. Though it would appear that by the use of terms such as “substantially complete,” “substantially accurate,” and “all material elements,” and by providing a means for waiver by “agreement of the parties,” the legislature seemed to have intended a common sense test to determine if a bill is properly completed — that is, if the insurer has all of the information needed to process the claim, or agreed to accept the information, the bill is “properly completed.”
R. Lazega, Florida Motor Vehicle No-Fault Law §5:10 (2004) (emphasis in original).
Proceeding to the question of the use of an outside vendor affixing the physician’s “signature,” the Court notes that federal regulations governing use of CMS forms likewise provide that the form is to be “signed by the provider, supplier, or hospital.” 42 CFR §424.33(b) (2005). See also 20 CFR §10.801(e) (2006). Administrative regulations further elaborate that the “Physician (Supplier) Signature Requirement” may be met by “authoriz[ing] a nonemployee agent, e.g., billing service or association, to [. . .] enter the physician’s signature.” Carriers Manual Part 3, §3057(B)(1)(e) (2008).
In an analogous situation, one circuit appellate court has ruled that the absence of a physician’s license number does not put the insurer on “notice of a covered loss” as required by statute. Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637, 637 (13th Cir. Ct. 2005). Other cases also address the absence of the information. See Top Chiropractic v. Nationwide Mutual Ins. Co., 12 Fla. L. Weekly Supp. 152 (Orange Cty. Ct. 2004); Miami Medical Group v. Progressive Southeastern Ins. Co., 11 Fla. L. Weekly Supp. 246 (Miami-Dade Cty. Ct. 2004). The decision in these three cases is understandable in light of the Legislature’s specific inclusion of the license requirement in the statute. As a result, the license requirement is “material” under Fla. Stat. §627.736(5)(d). To determine whether the omission of the signature of the physician is material, the Court next considers how Florida courts have construed “substantially complete” in analogous contexts.
A review of Florida cases involving construction of expressions similar to “substantial completion” indicates that a court should overlook mere technical deficiencies and instead look at whether the party is provided with all material information necessary to permit clear review. Fla. Jur. 2d Words & Phrases S-Z, 288 (2005). Therefore, the omission of the physician’s signature on the CMS form does not, standing alone, mean that the insurer was not provided proof of notice of a covered loss. The Defendant does not claim that this defect caused it any difficulty in reviewing the claim. Unlike the physician’s license number, the physician’s signature is not specifically required by the PIP statute itself.
The Defendant was clearly provided all information needed to process the claim. As a result, the Court finds that the affixed signature in Box 31, without any other defects in the form, lead to the conclusion that the CMS form is “substantially complete, and substantially accurate [. . .] as to all material elements.” Therefore, the Court holds that the Defendant is not entitled to summary judgment on its affirmative defense concerning the signature requirement. This ruling is consistent with this Court’s prior ruling on an analogous issue in Garcia v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 888 (Broward Cty. Ct. 2005), and Toueg v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 1016 (Broward Cty. Ct. 2006).
Even if the signature were material, however, persuasive authority exists that the printed designation can constitute a “signature.” Under Florida law,
In the absence of a statute prescribing the method of affixing a signature, it may be affixed in many different ways. It may be written by hand, and, generally, in the absence of a statute otherwise providing, it may be printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another.
Wemett v. State, 536 So.2d 349, 351 (Fla. 1988). See also State v. Hickman, 189 So.2d 254, 258 (Fla. 2d DCA 1966); In re Estate of Levitt, 172 So.2d 466, 467 (Fla. 3d DCA 1965); Hillstrom v. Gosnay, 188 Mont. 388, 395, 614 P.2d 466, 470 (1980). The Court recognizes that, in such a case, evidence is required to demonstrate under these authorities that the party intended the affixed name by someone else to constitute the affixing of his signature. The Court need not, however, reach this question because the Court has already found that the absence of the provider’s signature is not, standing alone, material to defeat a claim for treatment after October 1, 2003. Additionally, the Plaintiff submitted the affidavit of Dr. Gorenberg to contravene Defendant’s motion, which affidavit provides that he authorized the billing company to affix his signature. See Affidavit, ¶5.
As to the license number, this Court has previously ruled that the placing on the physician’s license number in Box 33, rather than Box 31, is materially compliant with the statute. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is DENIED.
