17 Fla. L. Weekly Supp. 199b
Online Reference: FLWSUPP 1703FORB
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Failure to submit D&A form constitutes failure to provide notice of covered loss — Providers of diagnostic services are exempt from requirement to obtain insured’s countersignature on D&A form, but are not exempt from requirement to submit form
[Editor’s note: Confession of error by insurer while appeal was pending.]
CHIROPRACTIC RADIOLOGY CONSULTANTS, P.A. a/a/o IDA FORBES, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit, in and for Miami-Dade County. Case No. 06-6128SP23 Division 05. June 12, 2009. Lisa Walsh, Judge. Counsel: Pablo Arrue, Office of the General Counsel, Miami. Paul K. Schrier, P.A., Miami.
FINAL ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT RE: FAILURE TOSUBMIT A DISCLOSURE AND ACKNOWLEDGMENT FORM AND ENTERING FINAL JUDGMENT FORTHE DEFENDANT
THIS CAUSE came before this Court on Defendant’s Motion for Final Summary Judgment. After a full hearing and review of the motion, response, affidavits and exhibits, the contents of the file and authorities, this Court grants the Defendant’s Motion for Final Summary Judgment, enters final judgment for the Defendant and makes the following findings of fact and conclusions of law:
This is an action for breach of contract for failure to pay benefits under Florida’s motor vehicle bodily injury insurance or “PIP” statutes. The Plaintiff, Chiropractic Radiology Consultants, P.A., alleges that the Defendant, United Automobile Insurance Company (“United”) failed to pay a timely submitted claim for a medical service. The medical service at issue is the professional component of reading two X-Rays.
In its first affirmative defense, the Defendant states that the Plaintiff failed to “provide Defendant with notice of a covered loss in accordance with Florida Statute 627.736(4)(b) in that the Plaintiff failed to provide Defendant with a valid and completed disclosure and acknowledgment form as required by Florida Statute 627.736(5)(e).” The parties agree that the Plaintiff failed to submit a disclosure and acknowledgment form with the bills for reading the X-Rays. This Court concludes that the Plaintiff’s failure to submit a disclosure and acknowledgment form to United constitutes the failure to provide the Defendant with notice of a covered loss under Section 627.736(4)(b), Florida Statutes, and therefore bars recovery in this breach of contract action.
The Disclosure and Acknowledgment Form
A disclosure and acknowledgment form1 contains two sections, the first section to be completed by the patient and the second by the provider. In the patient section, the patient confirms that listed services were provided, that the patient was not solicited to seek services from the medical provider, that the medical provider has explained the services to the patient for which payment is being claimed, and that the patient would be entitled to a percentage of the reduction of a bill if the patient notifies the insurer of a billing error. Space is provided below this section for the patient to sign and date the form.
In the second section of the form, the medical provider affirms that the medical care was provided, that the provider has not solicited the patient to make a claim for PIP benefits, that the treatment or services were sufficiently explained to the patient, that the accompanying bills are properly completed, and that coding of procedures is proper. The form is signed by the professional rendering treatment or the medical director.
Thus, a disclosure and acknowledgment form serves several purposes, including the prevention of fraud, patient brokering, unlawful unbundling, improper or duplicative coding, as well as corroboration that the care billed to the insurance company is actually provided.
A Completed Disclosure and Acknowledgment Form Must Be Submitted with the Medical Bills to Constitute “Notice of a Covered Loss”
There is no dispute that a disclosure and acknowledgment form was not provided by the Plaintiff to the insurer. The first question for this Court is whether the failure to provide a disclosure and acknowledgment form is a complete defense to a breach of contract action for failure to pay PIP benefits. Section 627.736(4)(b), Florida Statutes, provides that payment for PIP benefits shall be deemed overdue if not paid within 30 days after “the insurer is furnished written notice of the fact of a covered loss.” To furnish the insurer with notice of a covered loss, Section 627.736(5)(d), Florida Statutes, provides, inter alia:
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)
The next section, Section 627.736(5)(e), addresses the requirement that the provider furnish a disclosure and acknowledgment form:
(5)(e)1. At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an injured person, or his or her guardian, to execute a disclosure and acknowledgment form, . . .
Section (5)(e)1. further enumerates the information to be included in the form.
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By the plain language of Section 627.736(5)(d), an insurer is not provided with notice of a covered loss “unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.” Section 627.736(5)(e) mandates completion of a disclosure and acknowledgment form. This Court concludes that the failure to submit the form constitutes the failure to “complete[] in their entirety as to all material provisions” the forms and bills submitted to the insurer. Therefore, the failure to submit a disclosure and acknowledgment form constitutes the failure to submit notice of a covered loss,
A Disclosure and Acknowledgment Form Must be Submitted for Diagnostic Services for Reading an X-Ray
The second question for this Court is whether a disclosure and acknowledgment form is required for diagnostic services for reading an X-Ray. By its very nature, the reading of diagnostic tests cannot be explained to a patient. The Plaintiff argues that the provider should therefore be excused from submitting a disclosure and acknowledgment form. This Court rejects this argument, because the statute itself addresses the Plaintiff’s concerns.
Section (5)(e) provides that the form must be countersigned by the patient, unless the service is .for the reading of diagnostic tests:
(5)(e)2. The physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed has the affiimative duty to explain the services rendered to the insured, or his or her guardian. so that the insured, or his or her guardian, countersigns the form with informed consent.
(5)(e)3. Countersignature by the insured, or his or her guardian, is not required for the reading of diagnostic tests or other services that are of such a nature that they are not required to be performed in the presence of the insured. (emphasis added)
Thus, in recognition that the patient is not present when diagnostic services are being rendered, the statute exempts the patient’s countersignature.
The Plaintiff argues that Section (5)(e)3. should be read to exempt the requirement of the form, citing to two County Court orders. However, Section (5)(e)3. exempts “countersignature,” not the requirement that the form be submitted. The Legislature clearly knows the difference. In a subsequent subsection of (5)(e), the statute exempts the requirement of the form for emergency services:
6. This disclosure and acknowledgment form is not required for services billed by a provider for emergency services . . . .
§ 627.736(5)(e)6., Fla. Stat. If the Legislature intended to exempt diagnostic providers from the requirement to submit the form, it demonstrably would have done so, as it eliminated the requirement in a related section of the statute. In construing two related sections of a statute, “ ‘[t]he doctrine of in pari materia 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.’” McDonald v. State, 957 So. 2d 605, 610 (Fla. 2007) (harmonizing separate sections of the 10-20-LIFE statute) (quoting Zold v. Zold, 911 So. 2d 1222, 1229-30 (Fla. 2005)) (harmonizing sections of the alimony statute to give effect to legislative intent concerning alimony). Accordingly, this Court concludes that diagnostic providers are exempt from the requirement of a countersignature by the patient, and are not exempt from the requirement to submit the form.
The Plaintiff next argues that it would be impossible for the provider to comply because the provider would be signing and submitting a false document. This argument is not persuasive. As explained above, the patient is not required to countersign a form for diagnostic services performed outside the presence of the patient. Thus, in signing a form with the following statement in it — “B. The treatment or services rendered were explained to the injured person, or his or her guardian, sufficiently for that person to sign this form with informed consent” — the provider is not committing a falsehood. (App. 1) A provider signing the form does not attest that the provider explained anything to the patient, if the patient did not and was not required to sign the form. If the provider were truly concerned or confused, the provider could easily cross out this sentence or write in an explanation. But this concern by the provider does not excuse or exempt the provider from submitting the form.2
Where there are no genuine issues of material fact on the affirmative . defense of the failure to provide notice of a covered loss, this Court grants Defendant’s Motion for Final Summary Judgment.
IT IS ADJUDGED that Plaintiff CHIROPRACTIC RADIOLOGY CONSULTANTS, P.A. as assignee of IDA FORBES; c/o Paul K Schrier, P.A., [address omitted] take nothing by this action and that defendant, UNITED AUTOMOBILE INSURANCE COMPANY,[Address omitted], shall go hence without day.
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1A copy of the standard disclosure and acknowledgment form promulgated by the Office of Insurance Regulation was admitted as Plaintiff’s Exhibit 1. A copy of the form is attached to this order. (App. 1)
2This Court notes that X-Ray providers regularly submit disclosure and acknowledgment forms to insurers. A case in which no disclosure and acknowledgment form was submitted is a rarity.
