17 Fla. L. Weekly Supp. 190b
Online Reference: FLWSUPP 1703PERL
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 encouraging the reporting of fraud
HEALTH SOURCE CHIROPRACTIC, INC., As assignee of SUSANNE PERLA, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 08-10834CO-54. October 12, 2009. Kathleen T. Hessinger, Judge. Counsel: Marc B. Nussbaum, Reeder & Nussbaum, P.A., St. Petersburg. Stephen M. Lawler, Ramey & Kampf, P.A., Tampa.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This Cause came before this Court on Plaintiff’s Motion for Summary Judgment and Defendant’s Motion for Summary Judgment and this Court having reviewed the file, the motions, supporting affidavits and depositions and also having heard argument of counsel and being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows,Relevant Facts
1. Susanne Perla, hereinafter referred to as Perla, was involved in a motor vehicle accident and sought treatment with Plaintiff, Health Source Chiropractic, Inc., hereinafter referred to as Health Source.
2. At the initial visit, Health Source filled out the standard disclosure and acknowledgment form with Susanne Perla and the medical provider signing it. The form reflects “exam x-ray” as the services performed on such date.
3. The fee slip, prepared by Health Source on the initial visit, reflects that various chiropractic and physical therapy modalities were performed on Perla. Perla signed the fee slip under a section that states, “[m]y signature on this document attests to the fact that the services set forth herein were actually rendered. The person rendering the medical services for which a claim will be submitted has explained the services to me in detail.”
4. Health Source sent a claim form and the standard disclosure and acknowledgment form to Perla’s PIP carrier, USAA, for payment. The claim form reflected charges for the chiropractic and physical therapy modalities along with the exam and x-ray charges.
5. Defendant, USAA, denied Health Source’s claim, and all claims thereafter, as the chiropractic and physical therapy modalities were not reflected on the standard disclosure and acknowledgment form.
6. Health Source received permission from Perla to amend the standard disclosure and acknowledgment form to reflect the chiropractic and physical therapy modalities and resubmitted the form to USAA.
7. USAA continued to deny all the claims submitted by Health Source as the initial standard disclosure and acknowledgment form was not properly completed.
8. Plaintiff sued Defendant for failing to pay the claims submitted for the treatment of Perla. Defendant raised the affirmative defense that Plaintiff failed to provide proper written notice of a covered loss, as required by §627.736(4), Fla. Stat., as the standard disclosure and acknowledgment form was incomplete.
Issues
9. Both Plaintiff and Defendant filed motions for summary judgment for this Court to determine whether §627.736, Fla. Stat. requires the submission of the standard disclosure and acknowledgment form as a prerequisite to payment of PIP benefits. Plaintiff claims that the form is not a prerequisite, but even if it was, Plaintiff amended the incomplete form and resubmitted it. Defendant claims the form was initially incomplete; therefore, PIP benefits are not payable.
Law
This Court has previously addressed this issue and found that §627.736, Fla. Stat. does not require the submission of the standard disclosure and acknowledgment form as a prerequisite to payment of PIP benefits. As previously stated, §627.736(4), Fla. Stat. requires the insurer to be provided written notice of a covered loss; however, neither the plain language of §627.736(4), Fla. Stat., nor any inference therefrom, states that the standard disclosure and acknowledgment form is the written notice of a covered loss. Moreover, neither the plain language of §627.736, Fla. Stat., nor any inference therefrom, states that failure to provide the standard disclosure and acknowledgment form, whether in whole or in part, precludes payment of PIP benefits. This Court’s extensive legal analysis on this issue was addressed in the Order Denying Defendant’s Amended Motion for Summary Judgment, dated July 9, 2008, and Order Denying Defendant’s Motion for Rehearing, dated October 21, 2008, in Theodore P. Vlahos d/b/a Center for Orthopaedic Injuries and Disorders a/a/o Christina Jenkins v. USAA Casualty Ins. Co., case no. 07-11985-SC-44 [15 Fla. L. Weekly Supp. 996a; rehearing denied, 16 Fla. L. Weekly Supp. 92b]. Said orders are attached to this order for reference by the Parties.
However, this Court will further address Defendant’s claim that this Court’s ruling renders §627.736(5)(e), Fla. Stat., the standard disclosure and acknowledgment form section, useless as there is no remedy if the medical provider fails to properly comply with the standard disclosure and acknowledgment form. As this Court stated, in its Order Denying Defendant’s Motion for Rehearing, dated October 21, 2008, in Vlahos v. USAA, §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 patient and medical provider acknowledge the informed consent by signing the standard disclosure and acknowledgment form. The purpose of this 2003 statutory addition was to combat fraud. The Legislature wants the medical provider and the patient/insured to attest 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)l.a-e, Fla. Stat. The standard disclosure and acknowledgment form addresses the remedy set forth by the legislature if the insurer is improperly billed. Paragraph 5 of the standard disclosure and acknowledgment form states, “[i]f I notify the insurer in writing of a billing error, I may be entitled to a portion of any reduction in the amount paid by my motor vehicle insurer. If entitled, my share would be at least 20% of the amount of the reduction up to $500.” This information, in the standard disclosure and acknowledgment form, comes directly from the remedy provision in the statute, §627.736(5)(f), Fla. Stat.
Section 627.736(5)(f), Fla. Stat. (2008), states as follows,
Upon written notification by any person, an insurer shall investigate any claim of improper billing by a physician or other medical provider. The insurer shall determine if the insured was properly billed for only those services and treatments that the insured actually received. If the insurer determines that the insured has been improperly billed, the insurer shall notify the insured, the person making the written notification and the provider of its findings and shall reduce the amount of payment to the provider by the amount determined to be improperly billed. If a reduction is made due to such written notification by any person, the insurer shall pay to the person 20 percent of the amount of the reduction, up to $500. If the provider is arrested due to the improper billing, then the insurer shall pay to the person 40 percent of the amount of the reduction, up to $500. (emphasis added)
Thus, contrary to Defendant’s argument, the Legislature did set forth a remedy in the statute, §627.736(5)(f), Fla. Stat. Defendant, the PIP insurer, wants a remedy that allows it to withhold payment if the medical provider does not completely or properly fill out the standard disclosure and acknowledgment form. However, the Legislature did not intend to withhold payment to the medical provider for failing to provide or for providing an incomplete standard disclosure and acknowledgment form, the Legislature intended to withhold or reduce payment and prosecute the medical provider for improper billing. If any person provides the insurer with written notice of improper billing, the insurer has the duty to investigate the claim. If the insurer’s investigation proves that the insurer has been improperly billed then the medical provider’s bill is reduced by the amount improperly billed and the person providing the initial notice receives 20 percent of the amount reduced. If the improper billing is criminal in nature, the medical provider can be criminally prosecuted. The Legislature’s remedy is to encourage people to report potential fraud, not to allow the PIP carrier to withhold payment if a form is not properly completed. The Legislature’s remedy is focused on improper billing, not incomplete forms.
In the present case, when Defendant received the initial billing that reflected modalities not listed on the standard disclosure and acknowledgement form, then Defendant should have investigated to determine whether the billing was an improper billing or whether there was an error on the standard disclosure and acknowledgment form. If the Defendant had called the patient/insured, it would have learned that the billed modalities were performed. As such, Defendant would have learned that Plaintiff’s billing was not improper or fraudulent. Instead, of taking the short time to clear up a billing issue, the PIP insurer denied payment to the medical provider on all its billing. Moreover, in this case, the medical provider sent in a revised standard disclosure and acknowledgement form and Defendant continued to deny payment.
As stated, if the Legislature wanted a different remedy in the statute for failing to provide, or providing an incomplete or inaccurate, standard disclosure and acknowledgment form, then the Legislature needs to change the statute. Statutory construction does not permit this Court to interpret the PIP statute to create a remedy for the PIP insurers that is not in the statute.
It is therefore Ordered and Adjudged that Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED. The Parties advised there are remaining issues to be addressed; therefore, this order is only for partial summary judgment.
