16 Fla. L. Weekly Supp. 92b
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Nothing in sections 627.736(4) or (5) suggests that D&A form is written notice of covered loss or that failure to provide form precludes payment to medical provider — No merit to argument that section 627.736(5)(e) is rendered useless in absence of remedy for insurer for not providing form where statute serves purpose of insuring informed consent of patient to services rendered — Motion for rehearing denied
THEODORE P. VLAHOS, INC., d/b/a CENTER FOR ORTHOPAEDIC INJURIES AND DISORDERS as assignee of CHRISTINA JENKINS, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 07-11985-SC-44. October 22, 2008. Kathleen T. Hessinger, Judge. Counsel: Marc B. Nussbaum, Reeder & Nussbaum, P.A., St. Petersburg. Stephen M. Lawler, Ramey & Kampf, P.A., Tampa.
ORDER DENYING DEFENDANT’S MOTION FOR REHEARING
[Original Opinion at 15 Fla. L. Weekly Supp. 996a]
This Cause came before this Court, without hearing, on Defendant’s Motion for Rehearing with this Court reviewing Defendant’s Motion for Rehearing, Defendant’s Addendum to Motion for Rehearing, and Plaintiff’s Opposition to Defendant’s Motion for Rehearing, and this Court being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows:
Defendant argues this Court should grant rehearing on Defendant’s Motion for Summary Judgment as this Court’s ruling rendered §627.736(5)(e), Fla. Stat. useless because there is no remedy for insurers if the medical providers fail to send the insurer a disclosure and acknowledgment form. Defendant argues this Court must bring harmony between §627.736(4)(b) and § 627.736(5)(e) by finding that the medical providers’ failure to provide the insurer with a disclosure and acknowledgment form, pursuant to §627.736(5)(e), is failure to provide “written notice of the fact of a covered loss”, pursuant to §627.736(4)(b). Therefore, Defendant argues, the PIP payments are not payable if the disclosure and acknowledgment form are not provided. However, there is nothing in §627.736(4) or (5) that states, or even suggests, that the disclosure and acknowledgment form is the “written notice of the fact of a covered loss”. Moreover, there is nothing in either statutory section that states, or even suggests, that failure to provide the disclosure and acknowledgment form precludes payment to the medical provider. Thus, this Court cannot rewrite the statute to support Defendant’s position.
Defendant argues that a provision in §627.736(4)(b) incorporates §627.736(5) which demonstrates that the legislature provided for the disclosure and acknowledgment form to be the “notice of the fact of a covered loss” and/or condition precedent to payment, thus requiring the medical provider to provide the properly completed disclosure and acknowledgment form to the insurer before benefits are due. Defendant’s argument is without merit. The provision, in §627.736(4)(b), states, “[t]his 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).” §627.736(4)(b), Fla. Stat. (2005). This provision concludes a lengthy section that sets forth the requirements of when the insurer must pay a claim.
In short, the provision tells the insurer, notwithstanding, the requirements set forth in subsection (4), the insurer can dispute a bill that is not related, reasonable, medically necessary, or in excess of that permitted in subsection (5). Paragraphs of subsection (5) specifically state how much a provider can charge or bill for specific services. Specifically, §627.736(5)(a), Fla. Stat., states that a provider cannot charge an amount in excess of the amount it customarily charges for like services. Paragraph (5)(b)2 states thermograms, ultrasounds, and the like, shall not exceed the maximum reimbursement in the fee schedule in §440.13, Fla. Stat., the worker’s compensation statute. §627.736(5)(b)2, Fla. Stat. (2005). Paragraphs (5)(b)3 and (5)(b)4 set forth the billing amounts for nerve conduction testing based on Medicare Part B or §440.13 fee schedules depending on what nerve tests are performed and who performs them. §§627.736(5)(b)3 and 4, Fla. Stat. (2005). Moreover, MRI’s cannot exceed 175 percent of the allowable amount under the fee schedule for Medicare Part B for the year 2001, pursuant to §627.736(5)(b)5, Fla. Stat. (2005). Thus, the provision in §627.736(4)(b), Fla. Stat. allows the insurer to dispute a bill that violates that permitted in subsection (5).
The rules of statutory construction do not allow this Court to rule that this provision, in §627.736(4)(b), warrants an interpretation that the legislature intended that a loss was not payable if a properly completed disclosure and acknowledgment form is not provided to the insurer, for the following reasons. First, Defendant’s summary judgment argument is a notice issue. Defendant claims that the disclosure and acknowledgment form is “the written notice of the fact of a covered loss” required in §627.736(4)(b), Fla. Stat. The provision in §627.736(4)(b), Fla. Stat., relied on by Defendant and discussed in the two previous paragraphs, is an amount and medically necessary issue that is unrelated to this matter.
Second, as stated in this Court’s original order, §627.736(5), Fla. Stat. specifically states when bills are not payable if a provider does not comply with a notice provision. Section 627.736(5)(d), Fla. Stat. sets forth the requirements for statements and bills sent to the insurer from the medical providers. It further states, in the same paragraph, “for purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with the notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and 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) §627.736(5)(d), Fla. Stat. (2005). The legislature was very clear as to the consequences of not properly filling out the billing forms or not complying with the provisions of paragraph (5)(d). The legislature was very clear that failure to comply meant that the insurer was not provided with the “notice of the amount of covered loss or medical bills,” thus the medical provider’s bills would not be payable. The very next paragraph, §627.736(5)(e), is the issue in this case. Paragraph (5)(e) addresses the disclosure and acknowledgment form, including what has to be on the form, the responsibility of the medical providers and the insured, and the requirement to send the form to the insurer. There is no language in paragraph (5)(e) that states, or even suggests, that failure to provide the properly completed form to the insurer is failure to provide “notice of the covered loss” to the insurer. As this Court stated in its original order, it is the basic principle of statutory construction that courts are not at liberty to add words to statutes that were not placed there by the Legislature. Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001). This is particularly true when the Legislature was very clear in setting forth a specific consequence for failure to follow specific mandates in another paragraph of §627.736(5), Fla. Stat. (2005).
Furthermore, it should be noted that the §627.736(4)(b) requirement that the insurer be provided “written notice of the fact of a covered loss and of the amount of same” long preceded the 2003 revision of the PIP statute that added the disclosure and acknowledgment form in §627.736(5)(e). If this form was to be the new “written notice of the fact of a covered loss,” the Legislature would have made such clear in the statute.
Finally, the statute is not rendered useless, as argued by the Defendant, by not having a remedy for the insurer if the medical provider fails to provide the disclosure and acknowledgment form to the insurer. Defendant argues that the statute is required to have a useful purpose. It does have a useful purpose. Section 627.736(5)(e), Fla. Stat. is an informed consent statute requiring the medical provider to explain the services rendered to the insured patient. The insured patient is required to sign the disclosure and acknowledgment form attesting to the fact that the services were performed, that the medical provider explained the services, that the insured patient was not solicited to seek services by the provider and that the insured patient is aware that he is entitled to a percentage of a reduction in benefits paid by the insurer if there is a billing error by the provider. §627.736(5)(e)1.a-e, Fla. Stat. (2005).
Defendant’s Motion for Rehearing is replete with arguments as to why the medical providers’ bills should not be payable if the properly completed disclosure and acknowledgment form is not provided to the insurer, but the arguments do not give authority for this Court to write a provision into the statute. It is the duty of the Legislature to write the statute and the Court to interpret it. The rules of statutory construction do not permit this Court to interpret the PIP statute to mean that the medical providers’ failure to provide the properly completed disclosure and acknowledgment form to the insurer is failure to provide “written notice of a fact of a covered loss,” thus making the claim not payable. To interpret such is to write a new provision in the statute for which this Court will leave to the Legislature.
It is therefore Ordered and Adjudged that Defendant’s Motion for Rehearing is denied.
