18 Fla. L. Weekly Supp. 140a

Online Reference: FLWSUPP 1802TARP Insurance — Personal injury protection — Notice of loss — HCFA form — Professional license number — Error to enter summary judgment in favor of insurer based on medical provider’s failure to provide notice of covered loss due to omission of provider’s professional license number from original claim forms — On remand, trial court must determine whether original forms were substantially complete and whether any material error or omission on original forms was sufficiently cured by provider’s submission of amended claim forms

CERT. DENIED. 37 Fla. L. Weekly D1027a

[Lower Court final judgment published at 16 Fla. L. Weekly Supp. 1061c]

TARPON TOTAL HEALTH CARE a/a/o MARGARET LAGE, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 09-000043AP-88A. UCN522009AP000043XXXXCV. December 9, 2010. Appeal from Final Judgment Pinellas County Court. Judge Myra Scott McNary. Counsel: Lawrence H. Liebling, Safety Harbor, for Appellant. Robert H. Peterson, Tampa, for Appellee

(PER CURIAM.) Plaintiff-below/Appellant Tarpon Total Health Care, as assignee of Margaret Lage, (“Tarpon Total”) appeals the order granting summary judgment and final judgment for Defendant-below/Appellee GEICO General Insurance Company that was rendered on July 20, 2009. Upon review of the briefs and record, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. We reverse and remand for further proceedings.

On January 14, 2000, Margaret Lage was involved in a motor vehicle accident and thereafter she received chiropractic treatment and services from Tarpon Total. At the time of the accident Ms. Lage was insured with GEICO. In December 2004 and January 2005, Tarpon Total submitted five separate Centers for Medicare and Medicaid Services (CMS) 1500 health insurance claim forms to GEICO for services rendered to Ms. Lage between November 24 and December 22, 2004. The parties agree that these original claim forms were filed within thirty-five days of the date of service. Tarpon Total has conceded that in box 31 of the CMS 1500 claim forms, in which the provider’s name is to be stated, the doctor’s name and signature had been provided but the doctor’s professional license number was not included. GEICO denied these claims but did not complain of the failure to include the doctor’s professional license number.

In October 2005, Tarpon Total sent a pre-suit demand letter to GEICO which included corrected claim forms. Tarpon Total has conceded that these corrected claim forms did not include the doctor’s professional license number.¹

On July 9, 2007, Tarpon Total resubmitted five CMS 1500 health insurance claim forms to GEICO. These new forms contained corrected information and included the doctor’s professional license number in box 31. On August 1, 2007, GEICO denied these resubmitted claims as untimely. On August 8, 2007, Tarpon Total sent a pre-suit demand letter to GEICO and attached the resubmitted claim forms. On August 29, 2007, Tarpon Total filed a complaint seeking payment for the referenced claims, interest, costs, and attorney’s fees.

On May 11, 2009, GEICO filed an amended motion for summary judgment for “Failure to provide written notice of a covered loss: Deficient HCFA form.” On the same date, GEICO filed a motion for summary judgment for “Failure to Submit Disclosure and Acknowledgment Form.” On February 24, 2009, Tarpon Total filed a “Motion for Partial Summary Judgment as to the Medical Necessity, Reasonableness, and Relatedness of the Services Furnished by Plaintiff to Margaret Lage.”

On May 28, 2009, a hearing was conducted on GEICO’s amended motion for summary judgment based on failure to provide timely written notice of a covered loss due to the failure of Tarpon Total to include the doctor’s professional license number on the original claim forms. On July 20, 2009, an order was rendered granting GEICO’s amended motion for summary judgment and entering final judgment for GEICO.

Argument concerning Tarpon Total’s motion for summary judgment was not presented to the trial court and the motion was not considered on its merits. However, the trial court noted that Tarpon Total’s motion was rendered moot when summary judgment was granted for GEICO. The trial court orally ruled that Tarpon Total’s motion for summary judgment was denied as moot. Tarpon Total’s appeal of the order granting the amended motion for summary judgment and the entry of final judgment for GEICO followed.

Standard of Review

A movant is entitled to summary judgment if the evidence on file shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Technical Packaging, Inc. v. Hanchett, 992 So. 2d 309, 311 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2305a]. An issue of statutory construction presents a pure question of law. The courts have rules of statutory construction which include the preeminent rule that legislative intent is the most important factor when performing an analysis. Quarantello v. Leroy, 977 So. 2d 648, 651 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D517a].

Applicable Statutes

The statutory sections at issue in the present case are section 627.736(4)(b), (5)(b, c.1, d), Florida Statutes (2004). These statutes state in pertinent part:

(4) Benefits; when due.–. . . .

. . . .

(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. . . . 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.

. . . .

(5) Charges for treatment of injured persons.–. . . .

. . . .

(b)1. An insurer or insured is not required to pay a claim or charges:

. . . .

d. With respect to a bill or statement that does not substantially meet the applicable requirements of paragraph (d);

. . . .

(c)1. With respect to any treatment or service . . . the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph. . . .

. . . .

(d) All 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 . . . for purposes of this paragraph. . . . 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.” . . . 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.

(Emphasis added).

Amended Motion for Summary Judgment

In the amended motion GEICO argued that although the original CMS 1500 health insurance claim forms were timely filed within thirty-five days of service in compliance with section 627.736(5)(c).1, they were fatally flawed because they failed to include the provider’s professional license number as required in section 627.736(5)(d). It was asserted that because the properly completed forms with the provider’s professional license number were not resubmitted by Tarpon Total for more than two and one-half years after the date of service, the bills are untimely and no payment is required by GEICO.

In response, Tarpon Total argued that although the original claim forms were incomplete, GEICO was placed on notice of its claim when the claim forms were submitted in December 2004 and January 2005. It was asserted that the corrected claim forms submitted in July 2007 cured the deficiency of the failure to include the doctor’s professional license number in box 31 and the claims should be paid.

Analysis

In the present case the trial court agreed with the argument and reasoning of GEICO. At the time of the hearing on the motion for summary judgment and at the time the final judgment was rendered on July 20, 2009, the circuit courts across Florida were split on the issue of whether the failure to include the provider’s professional license number on a CMS 1500 health insurance claim form was a fatal omission under section 627.736. There were no opinions issued by the appellate division of the Sixth Judicial Circuit Court or by the District Courts of Appeal addressing the specific issue raised by the parties. In United Automobile Insurance Co. v. Ortiz, 16 Fla. L. Weekly Supp. 620a (Fla. 11th Cir. App. Ct. April 30, 2009), cert. denied on merits, 4 So. 3d 1238 (Fla. 3d DCA 2009), the Eleventh Judicial Circuit Court acting in its appellate capacity issued an opinion which discussed the two prevailing schools of thought at that time as to this issue and the legislative history.

However, on December 2, 2009, the Third District Court of Appeal issued its opinion in United Automobile Insurance Co. v. Professional Medical Group, Inc., 26 So. 3d 21 (Fla. 3d DCA 2009) [24 Fla. L. Weekly D2500a], rev. denied, No. SC10-515, 2010 WL 3801820 (Fla. Sept. 28, 2010). The posture of Third District Court of Appeal case is that of a petition for writ of certiorari seeking second-tier review of the decision of the Eleventh Judicial Circuit Court acting in its appellate capacity which per curiam affirmed a final summary judgment entered in favor of Professional Medical Group, Inc. (PMG), a provider. The Third District Court of Appeal denied United Automobile Insurance Company’s (United) petition. The opinion includes an in-depth discussion of the facts of the case below and the trial court’s conclusions which, in part, involved the same issue presented in the instant case.

In October through December 2004, PMG submitted three sets of CMS 1500 claim forms for services performed in August through November 2004 for its patient, an insured of United. These claim forms did not include the physician’s license number in box 31. On December 14, 2004, PMG sent a demand letter to United with a resubmission of the claim forms which included the physician’s license number in box 31. United denied the claims because the physician’s license number was not included on the original claim forms and because the initial set of bills did not include a disclosure and acknowledgment form. Litigation ensued and the trial court ultimately entered summary judgment for PMG finding that it had “substantially complied” with section 627.736. As for the failure to include the provider’s professional license number, the trial court found that PMG had “adequately corrected the initial error of failure to provide the license number, and that United knew who the physician was.” Id. at 23.

In determining that the appellate division of the circuit court had not departed from the essential requirements of law in affirming the order granting summary judgment for the provider, the Third District noted that the term “properly completed” in section 627.736(5)(d) is defined in section 627.732(13), Florida Statutes (2004). The definition states that the term 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.” Prof’l Med. Group, 26 So. 3d at 24 (emphasis in original).

The Third District stated that pursuant to section 627.736(5)(b)1.d, an insurer is not required to pay a claim that does not substantially meet the applicable requirements of section 627.736(5)(d). The Third District concluded that “based upon the statute’s plain language, a bill or statement need only be ‘substantially complete’ and ‘substantially accurate’ as to relevant information and material provisions in order to provide notice to an insurer.” Id.; see also Ortiz, 16 Fla. L. Weekly Supp. 620a (reaching same holding).

The Third District stated that the name of the physician had been provided to United in the initial claim forms, United did not claim that it did not know the physician or that the person named in fact was not a licensed physician, and it did not object to the missing physician license number. It concluded that the initial set of claim forms provided to United were substantially complete as to all relevant and material information required by section 627.736(5)(d).

In dicta the Third District Court of Appeal stated,

Additionally, even if the physician’s license number were deemed a material provision of the statements or bills, nothing in the statute’s plain language indicates that the absence of the license number cannot be cured by later submission of the number to the insurer on a claim form as described in section 627.736(5)(d). It is undisputed that PMG provided United the license number on another claim form that was mailed to United with a demand letter prior to litigation. Accordingly, any error or omission, if it existed, was sufficiently cured by PMG prior to the initiation of litigation.

Id. at 24-25.

The Second District Court of Appeal has not issued an opinion addressing this issue and it is not apparent that a case involving this issue currently is pending before that court.² Although the ruling of the Third District Court of Appeal is not binding precedent due to the posture of the case; see Achord v. Osceola Farms Co., 35 Fla. L. Weekly D1966b (Fla. 4th DCA Sept. 1, 2010), this Court is persuaded that without contrary guidance from the Second District Court of Appeal, the reasoning and statutory construction found in the Third District Court of Appeal’s opinion on second-tier certiorari is sound. See also Ortiz, 16 Fla. Law Weekly Supp. 620a.

Conclusion

This Court concludes that the order granting the amended motion for summary judgment and the final judgment for GEICO must be reversed as there remain material issues of fact to be determined. See Technical Packaging, 992 So. 2d at 311.

Based on the reasoning and statutory construction of the Third District Court of Appeal in Professional Medical Group the issues to be determined include, but are not limited to, (1) whether the original CMS 1500 health insurance claim forms were “substantially complete” as to all relevant and material information required by section 627.736(5)(b); and (2) whether any material error or omission, if it existed, was sufficiently cured by Tarpon Total. This Court also finds that Tarpon Total’s motion for summary judgment no longer is moot as it has not been established that GEICO is entitled to judgment as a matter of law.

Reversed and remanded for further proceedings consistent with this opinion. (Before ALLAN, GREER, and SCHAEFER, JJ.)

__________________

¹The Court notes that in November 2005, Margaret Lage filed complaints against GEICO in Lage v. GEICO General Insurance Company, case numbers 05-010796CO and 05-011386CO as to these same claims. In the answers filed to the complaints, GEICO did not raise the issue of the failure to include the professional license number on the claim forms. The cases were consolidated and eventually voluntarily dismissed without prejudice on June 12, 2007.

²A petition for writ of certiorari is currently pending before the Fifth District Court of Appeal in Florida Center for Orthopaedics v. Progressive Express Insurance Co., Case No. 5D10-1010 (Fla. 5th DCA). However, the case is distinguishable because the Ninth Judicial Circuit Court appellate opinion does not state that the provider resubmitted the disputed claim forms with the provider’s professional license number. The circuit court acting in its appellate capacity concluded, contrary to Professional Medical Group, but without citing the case, that it was mandatory to include the professional license number on the health insurance claim forms and that the failure to include the number was fatal to the provider’s claim. See Fla. Ctr. for Orthopaedics v. Progressive Express Ins. Co., 17 Fla. Law Weekly Supp. 878a (Fla. 9th Cir. App. Ct. March 2, 2010).