16 Fla. L. Weekly Supp. 396a
Online Reference: FLWSUPP 165LEADB
Insurance — Personal injury protection — Coverage — Medical expenses — CPT coding — No merit to argument that trial court erred in considering deposition of insurer’s coding expert in opposition to motion for summary judgment because insurer violated rule 1.510(c) by failing to specifically designate deposition transcript as evidence to oppose motion for summary judgment where notice of filing transcript 19 days prior to summary judgment hearing was appropriate and sufficient notice satisfying intent of rule — Further, even if transcript was not properly before court, where provider’s motion for summary judgment did not negate allegation that CPT codes at issue had been unbundled, denial of summary judgment was proper — Where insurer denied payment for CPT codes for unbundled services and paid benefits for simultaneously billed bundled service code that included those other services, statutory obligation to contact provider to discuss change in coding was not triggered
TRAN CHIROPRACTIC & WELLNESS CENTER, INC., a/a/o David Leadbetter, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County. Case No. 08-10269, Division X. L.C. Case No. 06-33537-CC. March 2, 2009. On review of a nonfinal order and final judgment of the County Court for Hillsborough County. The Honorable Paul Huey presiding. Counsel: Philip A. Friedman, Bonifield, Friedman & Liefer, P.A., Tampa, for Appellant. Robert H. Oxendine, Oxendine & Oxendine, P.A., Tampa, for Appellee.
[Editor’s note: Lower court order at 15 Fla. L. Weekly Supp. 726a]
(JAMES D. ARNOLD, J.) This appeal is before this court to review the trial court’s denial of Appellant healthcare provider’s (Tran’s) Motion for Summary Judgment and subsequent entry of a final judgment in favor of State Farm. We have jurisdiction pursuant to §26.012, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(c)(1)(A) and 9.110(h).
Tran contends that the court’s denial of its motion for summary judgment was error because the judge improperly relied upon a deposition of State Farm’s expert, a deposition that State Farm did not notify Tran it intended to use to oppose the summary judgment, in violation of the notice provisions of Florida Rule of Civil Procedure 1.510(c). Tran also takes issue with the final judgment entered in favor of State Farm on the ground that it is based on an erroneous interpretation of §627.736(5)(b)(1)(e), Florida Statutes, which requires an insurer to notify a healthcare provider if, when faced with an apparent ‘unbundling’ or ‘upcoding’ of services, an insurer changes codes to facilitate payment of a claim. Tran’s position is that it was entitled to judgment because State Farm had an unmet obligation to contact Tran about a change in coding. We disagree with Tran on both issues and affirm the order denying Tran’s motion for summary judgment and the final judgment for State Farm.
This is a routine personal injury protection (PIP) case. Tran sued State Farm when it refused to pay certain claims Tran submitted on behalf of State Farm’s insured. The basis for State Farm’s denial of the subject claims was that on the same date of service, Tran billed under a comprehensive code “chiropractic manipulative therapy,” which State Farm maintains includes the separately billed “pinch grip” and “range of motion” tests. State Farm paid for the chiropractic manipulative therapy, but did not pay for the pinch grip and range of motion tests, claiming they had been “unbundled” from the chiropractic manipulative therapy code, for which State Farm did pay. State Farm maintains that it did not alter any codes; it simply did not pay for the two duplicative claims. After denying Tran’s motion for summary judgment, the trial court later entered judgment in State Farm’s favor. Tran seeks review of both decisions.
The standard of review on an order denying a final summary judgment is de novo. Tiger Point Golf and Country Club v. Hipple, 977 So.2d 608 (Fla. 1st DCA 2007). A court’s interpretation of a statute is also subject to the de novo standard of review. Allstate Ins. Co. v. Regar, 942 So. 2d 969 (Fla. 2d DCA 2006). To the extent the final judgment presents a mixed issue of law and fact, this court applies a mixed standard of review: we defer to the trial court’s factual findings if they are supported by competent, substantial evidence, but we review the trial court’s legal conclusions de novo. Batur v. Signature Properties of Northwest Florida, Inc., 903 So.2d 985 (Fla. 1st DCA 2005) (internal citations omitted).
The summary judgment: Now that appeal has been taken from the final judgment, we may review, de novo, the antecedent denial of summary judgment. Tiger Point Golf and Country Club v. Hipple, 977 So.2d 608, 610 (Fla. 1st DCA 2007).
Tran contends that the trial court erred in denying its motion for summary judgment because State Farm violated Rule 1.510(c), Florida Rules of Civil Procedure, when it failed to notify Tran of its intent to use the deposition testimony of Denisha Torres-Lich, State Farm’s coding expert. The record shows that State Farm filed the transcript with the court 19 days prior to the summary judgment hearing, but after Tran filed its summary judgment motion. State Farm did not notify Tran of its specific intent to use the deposition in the summary judgment motion hearing, but it did file a notice of filing the deposition along with the deposition itself. Although Tran was aware of the filing, Tran maintains that the deposition transcript should have been excluded on the basis that State Farm failed to specifically designate the transcript as evidence to oppose the motion for summary judgment. Without this evidence, the court should have entered summary judgment in Tran’s favor. In response, State Farm argues that there was no other reason for it to file the deposition transcript; Tran knew or should have known that its purpose for filing the deposition transcript was to oppose the motion for summary judgment. Rule 1.510(c) states, in pertinent part:
. . .The adverse party shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent such evidence has not already been filed with the court, the adverse party shall serve copies on the movant by mailing them at least 5 days prior to the day of the hearing, or by delivering them to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of the hearing. . . .
In support of its argument that the failure to specify State Farm’s intent with respect to the deposition rendered it inadmissible, Tran cites two cases: Armand Rappaport v. Progressive Express Ins. Co., 972 So. 2d 970, 971 (Fla. 3d DCA 2007), and Nicholas Plaza v. Fisher Development, Inc., 971 So. 2d 918, 925 (Fla. 3d DCA 2007). Rappaport does not support this position because it appears in the sparse facts devoted to the issue that the party failed to ever file the relied-upon evidence. It does not speak to the propriety of filing the evidence without a specific statement as to its anticipated use in a summary judgment hearing. Thus, it is not on point. In Nicholas Plaza v. Fisher, as Tran stated in its initial brief, the treatment of the evidence in a summary judgment proceeding was part of a concurring opinion. Not only does it not constitute precedent, it, like Rappaport, involves a situation where the adverse party in a summary judgment submitted no evidence.1 In the instant case, the trial court judge concluded that the purpose of Rule 1.510(c) is to give a party advance notice of the other’s intent to use the transcript, and that appropriate and sufficient notice had been given. In addition, we find Florida Indus. Machinery, Inc. v. Executive Life Ins. Co.2 persuasive. In a similar situation to the one presented here, the court sidestepped the issue of whether the rule requirements were met. Rather, the court concluded that the challenged evidence “obviously showed a fact dispute” and “even if the depositions were not properly before the court, Appellee’s motion for summary judgment did not negate the allegation.” Here, the motion for summary judgment did not negate that the codes had been unbundled, thus we affirm the order denying motion for summary judgment.
The coding issue: In addition to its contention that it did not unbundle the subject services, Tran argues that State Farm did not contact it to discuss the change in coding, or make a good faith effort to do so as required by statute; therefore judgment in Tran’s favor, rather than State Farm’s, should have been entered. We disagree.
Florida Statute §627.736(5)(b)(1)(e) states:
“[A]n insurer . . . is not required to pay a claim or charges . . .[F]or any treatment or service that is upcoded, or that is unbundled when such treatment or services should be bundled. . . . [T]o facilitate prompt payment of lawful services, an insurer may change codes that it determines to have been improperly or incorrectly upcoded or unbundled, and may make payments based on the changed code, without affecting the right of the provider to dispute the change by the insurer, provided that before doing so, the insurer must contact the healthcare provider and discuss the reason for the insurer’s change and the healthcare provider’s reason for the coding, or make a reasonable good faith effort to do so. . .” (emphasis in trial court original).
Tran’s position is that State Farm changed the codes before paying the claim. Under the terms of the statute, if an insurer changes a code, it must contact the healthcare provider and “discuss the reasons for the insurer’s change.” But State Farm denies making any changes; rather, it contends that it simply denied payment for the “pinch grip” and “range of motion tests” which were improperly billed with the more comprehensive code for chiropractic manipulative therapy, which includes those services.
Neither party presented any case law to support its contention on the legal issue. It is clear to us that the codes were not exactly changed, but it is less clear whether bundling previously unbundled services constitutes a “change” for purposes of the statute. The trial court concluded that it did not, and we cannot disagree. While the statute allows for changing codes that are upcoded or unbundled, changing a code is arguably more foreseeable in an upcoding context than an unbundling one. When services are inappropriately unbundled, one contemplates that what happened here would occur: that the lesser codes would simply be denied in favor of a bundled service code that includes the other services.
But the foregoing is not the only possible scenario in an unbundling context. Consider the situation in which provider submits miscellaneous separately billed codes, performed on the same date of service, that could be bundled but weren’t and does so without including the more comprehensive code. If the code that includes all the services was not used by the provider, then an insurer would have to change a code in order to bundle them. This scenario suggests the potential for a literal change in codes in a bundling context and gives effect to the statute in this regard. Thus, the trial court was correct when it determined that State Farm’s action did not trigger the statutory obligation to contact the provider.
We also conclude without discussion that the trial court had competent evidence to support the judgment.
The order denying summary judgment and the final judgment are AFFIRMED. Accordingly, Tran’s motion for appellate attorney’s fees is DENIED. (PENDINO, J., Concurs.)
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1The majority rendered the court’s opinion based on other issues. The concurring judge thought the court could have reached the same result more simply based upon the adverse party’s failure to present any evidence in opposition to the motion for summary judgment. The issue was actually not one of notice but lack of evidence.
2560 So.2d 413 (Fla. 1st DCA 1990).
