16 Fla. L. Weekly Supp. 588a

Online Reference: FLWSUPP 166LEVY

Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form met statutory requirements despite listing services rendered as “chiro treatment, x-rays” where HCFA listing services and CPT codes was attached to D&A form — Demand letter was not insufficient for failing to account for partial payment made by insurer where check for partial payment was an offer to settle which was rejected by medical provider — Demand letter that stated total amount billed and amount that constituted 80% of those bills and that included copy of HCFA forms and billing ledger was sufficient

SOUTH FLORIDA PAIN & REHABILITATION OF WEST BROWARD a/a/o CHERION J. LEVY, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08 13568 COCE 54. January 26, 2009. Lisa G. Trachman, Judge. Counsel: Nick Zacharewski, Ft. Lauderdale. Rafael I. Katz, Katz & Katz, P.A., Hollywood.

ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT

The Plaintiff, South Florida Pain and Rehab of West Broward filed suit against United Automobile Insurance Company for breach of contract alleging failure to pay personal injury protection (PIP) benefits. Defendant seeks summary judgment on two separate grounds.

First, Defendant alleges that Plaintiff did not properly complete the disclosure and acknowledgment (hereinafter referred to as “D&A”) form required by Section 627.736(5)(e)(1), Florida Statutes (2008). Defendant claims that as a result, it did not receive notice of the fact of a covered loss, as required by Section 627.736(4)(b) Florida Statutes (2008).

In order to submit bills for the initial date of treatment of a PIP insured, healthcare providers must complete a Disclosure and Acknowledgment (D&A) form at the time of the initial treatment or service provided to the insured patient. F.S. 627.736(5)(e)(1) (2005).¹ There is no dispute that South Florida Pain & Rehab of West Broward submitted the proper form. United claims the form is insufficiently filled out because Line 1 lists the services rendered as “chiro treatment, x-rays”. South Florida Pain and Rehab of West Broward attached a standard Health Insurance Claim (HCFA) form. The HCFA form listed six CPT codes for the services rendered by South Florida Pain and Rehab of West Broward. These codes and the service to which they correspond are:

99204 — Initial Office Visit/Examination

98941 — Chiropractic Manipulative Treatment; spinal, three to four regions.

72040 — Cervical x-ray; two or three views.

72070 — Thoracic x-ray; two views.

72100 — Lumbosacral x-ray; two or three views.

A4556 — Supplies (electrodes)

The Court finds that the D & A form in this case meets the statutory requirements set forth in Section 627.736(5)(e)(1), Florida Statutes (2005), and this is especially so, where as here, the provider actually attached the applicable HCFA form to the D & A form.

Defendant next claims that Plaintiff failed to submit a valid Presuit Notice of Intent to Initiate Litigation (hereinafter referred to as “PSD”), as required by Section 627.736(10) Florida Statutes (2008). Defendant alleges Plaintiff’s PSD did not account for the amount of penalty or interest due on the claim and that the Plaintiff failed to account for a partial payment that had been made by Defendant.

Prior to the PSD in this case, United sent South Florida Pain and Rehab of West Broward two checks. The first check was in the amount of $2,686.40 for Personal Injury Protection (PIP) benefits on behalf of its insured, Cherion Levy and the second check was for $338.78 as an interest payment thereon. The check for benefits stated on its fact that it was “FULL & FINAL PAYMENT” for all dates on which South Florida Pain & Rehab of West Broward provided services to Defendant’s insured, Cherion Levy. South Florida Pain and Rehab of West Broward did not negotiate these checks as it considered them to be an offer to settle, which it rejected.

This Court finds that the Presuit Notice of Intent to Initiate Litigation/Presuit Demand Letter in this case complied with the statutory requirements of Section 627.736(10) Florida Statutes (2008). The provider submitting the PSD need only state the exact amount it claims to be due; not the amount that it thinks the insurance company will want to pay or consider proper. There is no way for a medical provider or claimant to know what an insurance company is going to consider paying. The provider or claimant can only be charged with knowledge of the amount it claims to be due, and that is all that is required to be itemized pursuant to Section 627.736(10) Florida Statutes (2008). The only reasonable conclusion is that what needs to be in the PSD is the amount Plaintiff is billing.

In particular, in this case, the insurer has not paid any of Plaintiff’s charges. The checks that United sent to South Florida Pain and Rehab of West Broward were an offer to settle. The offer to settle was rejected by the Plaintiff. Therefore, there were no prior payments made. Where an insurer pays nothing, and the demand letter says that nothing was paid, the Plaintiff has stated what it claims to be due.

In this case, the PSD letter stated the total amount billed, the amount those bills equaled at eighty percent (the statutorily required covered amount per 627.736(1)(a)) and included a copy of the billing ledger and the HCFA forms previously submitted to the insurance company. This complies with Section 627.736(10) Florida Statutes (2008).

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED. The issues relating to the sufficiency of the Plaintiff’s Presuit Demand Letter and Disclosure and Acknowledgment Form have been disposed of and these are no longer issues in this case.

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¹The services at issue were rendered in 2005. Accordingly, that version of Section 627.736, Florida Statutes applies to this issue. Notwithstanding, there have been no material changes to the Disclosure and Acknowledgment Letter requirement and the analysis remains the same under either the 2005 or the current version of the statute.