16 Fla. L. Weekly Supp. 620a
Online Reference: FLWSUPP 167ALMOR
Insurance — Personal injury protection — Notice of loss — HCFA form — Medical license number — Omission of medical provider’s license number from HCFA form was not material element of notice of loss where form was filled out properly as to all provisions except license number, provider was licensed, there was no indication that insurer even considered possibility that provider was not properly licensed, and provider’s license number was easily obtained from Department of Health website
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. JOHN ORTIZ, D.C., a/a/o Paula Almorose, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 08-066 AP. L.C. Case No. 06-023947. April 30, 2009. An Appeal from the County Court for Miami-Dade County. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Lisa Sanders, Green & Sanders, P.A.; Jose R. Iglesia, Jose R. Iglesia & Associates, former counsel of record Mari I. Sampedro-Iglesia, Jose R. Iglesia & Associates; and Virginia Best, Lopez & Best, Attorneys at Law, for Appellee.
(Before: STANFORD BLAKE, BERTILA SOTO, and ORLANDO A. PRESCOTT, JJ.)
SECOND AMENDED OPINION
[Prior Amended Opinion at 16 Fla. L. Weekly Supp. 308h]
(Per Curiam.) The issue before this Court is how to apply the provisions of section 627.736(5)(d), Florida Statutes (2004) to the requirements of section 627.736(4)(b), Florida Statutes (2004). Specifically, when does the medical license and signature provision of section 627.736(5)(d) require a court to find as a matter of law that an insurance provider has not received a properly executed written notice of a covered loss?
Because the language of the statute is unclear, and in some respects self-contradictory, courts have struggled since the inception of the 2003 language to properly interpret these provisions. Nevertheless, it is up the courts to make sense of statutory language, regardless of how artfully or poorly drafted, and we set forth below the method of interpreting the interaction between (4)(b) and (5)(d) in relation to written notices of covered loss.
On January 13, 2005, Paula Almorose was involved in an auto accident. She received treatment from appellee John Ortiz (Ortiz), to whom she assigned her insurance benefits for payment of that treatment.
Ortiz sought payment from appellant United Automobile Insurance Company (United), and upon not receiving payment, filed the instant lawsuit. United filed for summary judgment, alleging that Ortiz did not properly fill out the Health Care Financing Administration (HCFA) 1500 forms. Specifically, he did not provide his medical license number next to his signature in the box that states “Signature of Physician or Supplier, Including Degrees or Credentials.”
United asserted that the license number was required by section 5(d), and by not providing his license number he, in effect, never provided notice of any kind.
Ortiz countered that if United had decided to not to pay because the form was improperly filled out, it was required by statute to explain so; and furthermore the failure to do so acted as a waiver of the 5(d) defense United was attempting to assert. Ortiz also argued that he had substantially complied with the statute.
The trial court denied United’s motion for summary judgment. The trial court subsequently granted a motion for summary judgment in favor of Ortiz. Because United had withdrawn its other affirmative defenses, the court entered final judgment in favor of Ortiz.
Before resorting to rules of statutory interpretation, courts must first look to the actual language of the statue itself. BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003); Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000). Provisions in a statute are not to be construed as superfluous if a reasonable construction exists that gives effect to all words and provisions. Koile v. State, 934 So. 2d 1226, 1231 (Fla. 2006).
The actual language of section 627.736(4)(b), Florida Statutes (2004) is as follows:
(4)(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence. However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment. For the purpose of calculating the extent to which any benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery. This 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). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
The actual language of section 627.736(5)(d), Florida Statutes (2004) is as follows:
(5)(d) All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. All billings for such services rendered by providers shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the Centers for Medicare and Medicaid Services (CMS) 1500 form instructions and the American Medical Association Current Procedural Terminology (CPT) Editorial Panel and Healthcare Correct Procedural Coding System (HCPCS). All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” In determining compliance with applicable CPT and HCPCS coding, guidance shall be provided by the Physicians’ Current Procedural Terminology (CPT) or the Healthcare Correct Procedural Coding System (HCPCS) in effect for the year in which services were rendered, the Office of the Inspector General (OIG), Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with 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.
Editing these provisions to focus on the language directly applicable to the case before this Court results in the following:
Section 627.736(4)(b), Florida Statutes (2004):
[p]ersonal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . . This paragraph does not preclude or limit the ability of the insurer to assert that the claim was . . . in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
(Emphasis added).
Similarly, the pertinent language of section 627.736(5)(d), Florida Statutes (2004) reads:
[a]ll statements and bills for medical services rendered by any physician . . . shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form . . . or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. . . . All providers other than hospitals shall include . . . the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” . . . For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with 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).
Of particular note are two clauses that appear in 5(d). The first is the clause in the middle of 5(d) that requires the doctor to provide his medical license number in the signature box. This could be termed the “medical license” clause. The second clause appears towards the end of 5(d) and states the form is improper “unless the statements or bills are properly completed in their entirety as to all material provisions.” This could be termed the “material provisions” clause. It is the friction between these two clauses that gives rise to the current controversy.
Taken as a whole, the language of the two subsections creates, in effect, a logical loop. The provisions of 4(b) have certain requirements, and also make reference to 5(d). The provisions of 5(d) contain additional requirements, but also contain language on how to interpret 4(b). Therefore, one must return to 4(b) with the interpretive language from 5(d), which in turn leads one back to 4(b), which requires an interpretation of 5(d), and so forth. In addition, as expounded below, the provisions of these subsections can at times contradict each other, depending on the situation.
As these sections provide textbook perfect examples of unclear language, this Court must resort to statutory interpretation. See Joshua, 768 So. 2d at 435. In doing so, we attempt to construe the statutory language in a manner that gives effect to all words and provisions. Koile, 934 So. 2d at 1231.
In construing an ambiguous statute, the court must address the legislation as a whole, including the concern to be corrected, the language, title, and history of its enactment, and the state of law already in existence. E.A.R. v. State, 2009 WL 217979, at *1 (Fla. 2009) [34 Fla. L. Weekly S120a]. “The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Fla. Dep’t of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005) (quoting Fla. State Racing Comm’n v. McLaughlin, 102 So. 2d 574, 575-76 (Fla. 1958)). The intent of the Legislature is the polestar of statutory construction. Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006).
As legislative intent is the polestar of statutory construction, we first turn to the Florida Senate select committee charged with studying this issue. The Staff Analysis states on many occasions that the purpose of the legislation is to reduce fraud. See generally CS/SB 32-A (2003). However, this is not the only problem that the legislation is designed to combat. For example, the Staff Analysis states: “A further finding is that the no-fault system has been weakened in part due to certain insurers not adequately or timely compensating injured accident victims or health care providers.” Staff Analysis CS/SB 32A at 8 (2003). The Staff Analysis summarizes the intent of the legislation by stating that: “it is a matter of great public importance that, in order to provide a healthy and competitive automobile insurance market, consumers be able to obtain affordable coverage, insurers be entitled to earn an adequate rate of return, and providers of services be compensated fairly.” Id. (emphasis added).
The task before this Court is to address 4(b) and 5(d) in such a way that, as a whole, they harmonize with each other and with legislative intent. In accordance with the select committee’s above-quoted language, any reading of the two subsections must attempt to both reduce fraud, and also improve timely compensation of injured accident victims or health care providers.1
The attempt to comply with this legislative intent, combined with the poorly crafted language of the statute, has led to two schools of thought when it comes to the license number clause. On one hand lies strict compliance with the “medical license” clause, without regard to the other important portions of the subsection. On the other hand is the school of thought that tests whether the healthcare provider has substantially complied with the statutory requirements in filling out the notice of covered loss.
United relies on Finlay Diagnostic Center, Inc. v. Progressive American Ins. Co., 13 Fla. L. Weekly Supp. 610b (Fla. Miami-Dade Cty. Ct. Jan. 31, 2006), affirmed No. 07-290 AP (Fla. 11th Cir. Ct. June 30, 2008). That court entered its order based on what it termed the “plain language of the PIP Statute,” and focused on the “medical license” clause to the exclusion of the rest of the statute. See also Miami Medical Group v. Progressive Southeastern Ins. Co., 12 Fla. L. Weekly Supp. 115 (Fla. 11th Cir. Ct. Nov. 30, 2004); The Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637 (Fla. 13th Cir. Ct. Apr. 25, 2005).
Ortiz, conversely, asserts that he substantially complied with the requirements of the act when he sent United the notice of a covered loss. Therefore, according to his reasoning, this Court should conclude that United was put on notice of the fact that there was a covered loss, and should not be allowed to avoid payment based on what amounts to a technicality. For this substantial compliance interpretation, Ortiz relies on United Automobile Insurance Co. v. Medical Specialists and Diagnostic Services, 11 Fla. L. Weekly Supp. 508a (Fla. 9th Cir. Ct. Mar. 1, 2004) and Physical Medicine Pain Center, P.A. v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 452a (Fla. Orange Cty. Ct. Mar. 5, 2004).2
Ortiz also relies on Medical Specialists and Diagnostic Services v. United Auto Insurance Co., 9 Fla. L. Weekly Supp. 708a (Fla. 9th Cir. Aug. 28, 2002), which dealt with a missing signature, instead of a missing license number. Ortiz nevertheless asserts that the same reasoning should be applied, which is to say the substantial compliance test.
Perhaps the strongest factor in favor of Ortiz’s position is the definitions section of the insurance statute. Ortiz points out that section 627.736(4)(b) uses the term “properly completed,” which is a term of art defined by the statute:
“Properly completed” means providing truthful, substantially complete, and substantially accurate responses as to all material elements to each applicable request for information or statement by a means that may lawfully be provided and that complies with this section, or as agreed by the parties.
Section 627.732(13), Florida Statutes (emphasis added).
Ortiz focuses on the words “substantially complete” and “substantially accurate” and concludes that, at bottom, the important question is whether he substantially complied with the intent of 5(d). He claims this intent is met by providing United with notice that there is a covered loss, and providing United with the information United requires for it to decide whether to pay for or contest the allegedly covered loss.
We adopt the substantial compliance standard advocated by Ortiz. However, we also conclude there is a threshold component, which is to first determine whether the medical license clause conflicts with the material provision clause.3
In other words, when confronted with this issue, a court must first determine whether the medical license number is material to determining whether there is a legitimate covered loss. If the information is material to that determination, and is missing, then the form has not been “properly filled out,” as defined by section 627.732(13), Florida Statutes. The court should then conclude that the insurer was not provided notice of the fact of a covered loss as defined by 4(b).
If, conversely, the court concludes that the information is not material to determining whether there is a legitimate covered loss, then the court should conclude that the clause requiring the medical license number and the clause requiring only “material provisions” are in direct conflict. To resolve that conflict, the court must determine whether the provider has substantially complied with the statute.4
In the current case, a close inquiry into the undisputed facts shows that the omission of the doctor’s license number was patently immaterial. The form was filled out properly as to all other provisions, the attached reports are complete and indicative of a properly licensed physician, and there is no evidence whatsoever of any fraud, or even any suspicion by United that there might be fraud. Specifically, there is no indication that United even considered the possibility that Ortiz was not a properly licensed physician, even when it used the failure to provide the license number as the basis for its motion for summary judgment.
Furthermore, the Doctor’s affidavit shows that he is, in fact, a properly licensed physician. The Doctor’s undisputed affidavit also asserts that the license number is easily obtained by visiting the Florida Department of Health website.
Although the trial court did not undergo the threshold inquiry of whether the medical license clause and the material provision clause are in conflict, it did come to the same conclusion that we reach today when it applied the substantial compliance test. Applying the tipsy coachman doctrine, we AFFIRM.5 Appellate attorney’s fees are awarded to appellee John Ortiz, pursuant to section 627.428(1), Florida Statutes and Florida Rule of Appellate Procedure 9.400. REMANDED to the trial court for determination of appellate attorney’s fee amount.
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1We also note that, in regards to the language of 5(d) requiring the license number, the Staff Analysis stated that “[c]urrently, the universal claim form utilized by medical providers (except hospitals) is the HCFA 1500 form, but it does not require a license number. However, Medicare does require a provider to include his/her license number on the form under the “Signature of Physician . . .” line, which is entry #31.” Staff Analysis CS/SB 32A at 15 (2003). Thus, it appears the legislature’s purpose in requiring the license number is not to combat fraud, but rather to synchronize the process with Medicare procedures.
2We note that the persuasiveness of these cases is dubious, since they were based on the statute as it stood before the 2003 changes.
3This is because the “all material provisions” language that appears at the end of 5(d) is also repeated in the definition section of 627.732(13), (which refers to “all material elements”). In fact, taking into account the legislative intent, the interaction between subsection 5(d), 4(b), and 627.732(13), the “material provisions” clause is at least as important, if not more important, than the “medical license” clause.
4Because the medical license number is explicitly listed in 5(d), it is presumed to be a material provision. However, this is a rebuttable presumption. If the provider can show that the missing license number was immaterial to the insurer’s ability to determine whether there was a covered loss, and can show that to find otherwise would actually contribute to the problem that “the no-fault system has been weakened in part due to certain insurers not adequately or timely compensating injured accident victims or health care providers” (Staff Analysis CS/SB 32A at 8 (2003)), then the presumption has been rebutted. Under this scenario, as stated above, the materiality clause is in direct conflict with the medical license clause.
5The tipsy coachman doctrine permits an appellate court to affirm a trial court’s decision that was correct in result, but based on the wrong reason, if there is record evidence of any theory or principle of law that would support the order. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
