16 Fla. L. Weekly Supp. 773a
Online Reference: FLWSUPP 168EBNER
Insurance — Personal injury protection — Disclosure and acknowledgment form — Sufficiency — Failure to comply with requirement to submit sufficient D&A form for initial date of service is fatal to medical provider’s entire claim — Listing of CPT codes on D&A form does not satisfy requirement to describe services actually rendered — Patient’s signing of treatment records does not satisfy requirement that patient countersign D&A form attesting to fact that services described were actually rendered — D&A form signed by physician one day after treatment was rendered is deficient where statute requires that provider sign form before patient countersigns form — Motion for summary judgment granted
REVERSED. FLWSUPP 1806EBNE.
ST. LUCIE INJURY CENTER, INC. (Astrid B. Ebner), Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2008-SC-9688-XXXX-SB-RD. June 17, 2009. James L. Martz, Judge. Counsel: Lindsay Porak, Boca Raton. Joseph G. Murasko, Vernis & Bowling of Palm Beach, P.A., North Palm Beach.
ORDER GRANTING DEFENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT AND CONTAINING FINAL JUDGMENT
COMES NOW, the Court having considered the Defendant’s Second Amended Motion for Summary Judgment, affidavit of Defendant’s claim representative and Plaintiff’s response and notice of filing case law and, having heard oral argument at the hearing on May 12, 2009 finds as follows:
INTRODUCTION
Undisputed Facts
1. This matter came before the Court for hearing on May 12, 2009. This is an action by a healthcare provider against an insurance company for no-fault benefits pursuant to an alleged document of assignment. The Defendant has moved for Summary Judgment for Plaintiff’s failure to comply with the “Disclosure and Acknowledgment” requirement found at Florida Statute Section 627.736(5)(e).
2. It is undisputed that Defendant received and denied Plaintiff’s bills.
3. It is undisputed that Defendant timely sent an explanation of benefits to Plaintiff in response to Plaintiff’s bills. All explanation of benefits stated the reason for denial as “the Disclosure and Acknowledgment form fails to comply with all or part of Florida Statutes, Section 627.736(5)(e)”.
4. It is undisputed that the first date of service was June 28, 2007.
5. It is undisputed the Plaintiff submitted an Office of Insurance Regulation Standard Disclosure and Acknowledgment Form which was purportedly signed by the patient on June 28, 2007. However, it is also undisputed that:
A. The physician did not sign and date the form until June 29, 2007;
B. Paragraph 1 did not contain a simple, plain English description of the services rendered. Rather, the description of the services were three numeric CPT Code descriptions. Specifically, Code 99204, 97010, 97014.
ANALYSIS AND LAW
6. Defendant argues the numeric CPT Code description is insufficient to comply with the specific requirements of Florida Statute Section 627.736(5)(e)(1)(a).
7. Plaintiff argues the deficiency in the form only affects the first date of service; second, the doctor is not required to sign at the initial treatment date but can sign thereafter and; third, the deficiencies in the form, and by extension, failure to comply with the plain language of the statute, may be overlooked by the Court when the medical records and bills have been sent contemporaneous with an incomplete disclosure and acknowledgment form. Additionally, Plaintiff points to record deposition testimony of the Defendant’s claim representative who acknowledges that the patient did sign the bottom of the page containing the treatment notes or medical records.
8. This Court finds with respect to the first issue, as it has ruled in the past, that the provider must comply for the initial date of service before any subsequent dates of service may be addressed. Without a sufficient disclosure and acknowledgment form there is no subsequent date of service. There is strong public policy wherein the insurance companies have a constrained thirty day time period to make payments. This quick turn around time for payment of bills is in the best interest of the public. The quid pro quo being the insurance carrier is entitled to a properly completed form as determined by the legislature that the insured has received the services for which the insurance company is being billed.
9. This dove tails with the second issue in that CPT Codes do not suffice to describe the services actually rendered. Florida Statute Section 627.736(5)(e)(1)a states:
“The insured . . . must countersign the form attesting to the fact that the services set forth therein were actually rendered (Emphasis added).”
10. Here, there is no indicia of what services were actually rendered other arcane numeric codes. Additionally, the fact that the patient signed the treatment records, is similarly deficient. For example, the treatment records do not contain the caveats and disclosures regarding criminal penalties for defrauding an insurance company and the warnings at the bottom of the Office of Insurance Regulations Standard Disclosure and Acknowledgment Form. See also, Pathway Wellness Chiropractic Clinic v. USAA Casualty Insurance Company, 16 Fla. L. Weekly Supp. 433 (Leon County, January 2009) [“Chiropractic treatment” does not substantially comply with the statutory requirements]; Paul Mitchell v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 611a (Duval County April 2008) [No merit to argument that failure to provide D&A form impacts only initial date of service]; Roberts Orthopaedic Clinic PA v. Progressive American Insurance Company, 15 Fla. L. Weekly Supp. 750 (Seminole County, March 2008) [Failure to list services actually provided on line 1 is fatal to all of Plaintiff’s causes of action]; R&C First Medical Center v. Progressive American Insurance Company, 15 Fla. L. Weekly Supp. 372a (Orange County, December 2007) [Deficient D&A Form is fatal to providers entire claim]; Jason Martin v. Progressive Auto Pro Insurance Company, (Duval County, February 2007) 14 Fla. L. Weekly Supp. 394 [No merit to argument that failure to provide form impacts only initial date of service]; North Florida Medical Clinic, Inc. v. Progressive Select Insurance Company, (Duval County, May 2007) [14 Fla. L. Weekly Supp. 689b] [No merit to argument that no-compliant form only impacts initial date of service.
11. Turning to the third issue, the Court now addresses the doctor’s signature occurring one day subsequent to the initial date of service. First, this Court observes, Florida Statute Section 627.736(5)(e)8 [Florida Statute 2003] provides:
“As used in this paragraph, “countersigned” means a second or verifying signature, as on a previously signed document, and is not satisfied by the statement “signature on file” or any similar statement.”
12. The use of the phrase “countersigned” is defined and, specifically applies to the signature of the patient to attest the fact that the “services set forth therein were actually rendered.” This language is found at 627.736(e)1a. The Court also notes the language in the past tense. Although no one has described Florida’s No-Fault Statute as a model of clarity, it seems that a reading of subpart (e) requires the healthcare provider to explain certain items to the patient, sign the form and then provide treatment. Thereafter, the patient attests to the treatment actually rendered (past tense). Therefore, the only logical interpretation of the statutory scheme requires the healthcare provider to indeed execute the form at the time of the initial treatment. Otherwise, the Court would not be giving effect to the statutory definition of “countersigned” which specifically envisions a previously signed document. There are only two individuals signing the document. The first individual is the healthcare provider, the second individual is the patient. Given the parameters of the statute as observed above, the only permutation or outcome is the healthcare provider signs first and thereafter the patient signs. But only after the services were actually rendered.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Plaintiff, ST. LUCIE INJURY CENTER, INC. shall take nothing by this action and Defendant, USAA CASUALTY INSURANCE COMPANY shall go hence without day. This Court reserves jurisdiction to determine attorney’s fees and taxable costs.
