19 Fla. L. Weekly Supp. 1092a
Online Reference: FLWSUPP 1913LEMIInsurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Medical provider’s motion for partial summary judgment is denied where there is genuine issue of material fact as to whether bills which failed to utilize correct CPT code for service rendered placed insurer on notice of covered loss and were overdue within meaning of PIP statute
NU-BEST WHIPLASH INJURY CENTER, INC. a/a/o SALLY LEMIEUX, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 10-4904 CO 41. May 29, 2012. Honorable Myra Scott McNary, Judge. Counsel: Arthur Liebling, for Plaintiff. Sandra L. Heller, Goldstein Law Group, Fort Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT DEFAULT
THIS CAUSE having come before the Court on Tuesday, April 17, 2012, on Plaintiff, NU-BEST WHIPLASH INJURY CENTER, INC. a/a/o SALLY LEMIEUX’S (hereinafter “NU-BEST’) Motion for Partial Summary Judgement. The Court, having reviewed the file and heard argument and reviewed the parties submissions, hereby finds as follows:
PROCEDURAL HISTORY
This case arises from a Complaint filed by NU-BEST on May 25, 2010, in which NU-BEST alleges that STATE FARM failed to tender full payment for diagnostic services purportedly performed on STATE FARMS’s insured, Sally Lemieux. It was further alleged that this diagnostic service pertained to injuries resulting from an automobile accident on June 6, 2008.
NU-BEST originally submitted its bill for payment pertaining to SALLY LEMIEUX on or about July 17, 2008. The diagnostic service indicated on the bill was identified by CPT Code “76496” with an associated charge of Nine Hundred Dollars and No/100 ($900.00). In its Explanation of Review dated August 5, 2008, STATE FARM did not tender reimbursement for this bill. It was indicated on the Explanation of Review that the CPT Code utilized is a “non-specific Code”.
In correspondence dated April 1, 2010, NU-BEST served its self titled Notice of Intent to Initiate Litigation to STATE FARM. In this demand, NU-BEST demanded payment for date of service July 1, 2008 in the amount of Nine Hundred Dollars and No/100 ($900.00). In this demand, NU-BEST also demanded penalty (not to exceed $250.00) and postal cost in the sum of Five Dollars and 54/100 ($5.54).
On May 3, 2010, STATE FARM issued payment to NU-BEST pertaining to the medical service purportedly rendered on July 1, 2008.
In issuing payment, STATE FARM utilized what it determined to be the correct CPT Code per the America Medical Association. This CPT Code was “76120.”
The amount of reimbursement issued by STATE FARM for “76120” totaled One Hundred and Forty Three Dollars and 42/100 ($143.42).
In correspondence dated May 12, 2010, Linda Armstrong, Claim Representative, indicated:
“After a review of records, it appears the demand is for services defined as digital motion x-rays”. Based on information from the AMA, it appears the correct Code for the service rendered would have been CPT Code 76120. Attached please find a check for CPT Code 76210 and its corresponding Explanation of Review. If you would like to discuss this issue further, please contact at the number listed below.
This reimbursement amount included only reimbursement for the medical service itself.
NU-BEST originally filed suit against STATE FARM in January 2010 alleging non-payment PIP benefits pertaining to its treatment of SALLY LEMIEUX.
On January 14, 2010, NU-BEST filed its Amended Complaint seeking “interest, penalty and postage”.
STANDARD OVERVIEW — SUMMARY JUDGEMENT
Summary Judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to a judgement as a matter of law, viewing every possible inference in favor of the non-moving party. Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400-01 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D2304a]. The burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). In ruling on a Motion for Summary Judgement, the Court may consider the pleadings, depositions, answers to interrogatories, and admissions filed together with the affidavits, if any. Rule 1.510, Florida Rules of Civil Procedure. The party moving for summary judgement has the burden of establishing irrefutably that the non-moving party cannot prevail. Hervey v. Alfonso 650 So. 2d 644, 645-46 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D326a].
ANALYSIS
Florida Statutes Section 627.736(4) provides for how benefits for Personal Injury Protection benefits become due from an insured. Florida Statutes Section 627.736(4)(b) provides in part:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within thirty days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.
This section goes on to provide:
. . . . .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 (emphasis added).
Additionally, Florida Statutes Section 627.736(5)(d) states (in part):
All billings for such services rendered by providers shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) for Healthcare Correct Procedure Coding System (HCPCS) for 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).
This Section goes on to state:
For purposes of paragraph (4)(b), an insurer shall not be considered furnished with notice of the amount of covered loss or medical bills due unless the statement or bills comply with this paragraph, and unless the statement or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.
Additionally, Florida Statute Section 627.736(10)(b) provides:
If, within thirty days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insured together with applicable interest and penalty of 10% of the overdue amount paid by the insurer, subject to a maximum penalty of Two Hundred and Fifty Dollars and no/100 ($250.00), no action may be brought against the insurer (emphasis added).
As part of the record before this Court, STATE FARM filed the sworn affidavit of Linda Armstrong in opposition to Plaintiff’s Motion for Partial Summary Judgement. Within the body of this affidavit, Ms. Armstrong references the requirements within Florida Statute Section 627.736 which require NU-BEST utilize the appropriate CPT Coding, meaning that the appropriate CPT Code for the medical service rendered must be used in order to obtain reimbursement.
Ms. Armstrong indicates that the diagnostic service for which STATE FARM has been billed by NU-BEST in this case is “digital motion x-ray/videofluoroscopy”
Further, Ms. Armstrong states that it is STATE FARM’S belief that for the diagnostic service of “digital motion x-ray/videofluoroscopy”, the American Medical Association has indicated that the appropriate Code to be utilized is 76120.
In support of its belief, attached to the affidavit of Ms. Armstrong were formal communications from the American Medical Association pertaining to the appropriate CPT Code to be utilized for digital motion x-ray/videofluoroscopy. Additionally, Ms. Armstrong’s affidavit included correspondence from the American Medical Association responsive to inquiries as to the appropriate CPT Coding for digital motion x-ray/videofluoroscopy, which indicated that the appropriate code to be utilized was 76120 and not 76496, as was done by NU-BEST in the instant action.
This Court is satisfied that there is a genuine issue of material fact as to whether the bill at issue was “overdue’ as indicated by 627.736 (4)(b) infra. There is a fact issue as to STATE FARM’s belief that the claim was not owed as billed as demonstrated in Ms. Armstrongs’ affidavit. Her sworn contention that STATE FARM’S reasonable proof to establish that the bill at issue is not owed by STATE FARM as billed by NU-BEST is based upon the Coding Communications and items of correspondence attached to her affidavit. Ms. Armstrong’s affidavit also asserts that STATE FARM’s belief NU-BEST failed to follow proper AMA Coding resulted in STATE FARM’S not being placed on notice of a covered loss.
This Court finds that the affidavit and other record evidence described herein provided by STATE FARM creates a general issue of material facts as to whether STATE FARM had reasonable proof to establish that the insurer was not responsible for the payment to NU-BEST, as NU-BEST’S original billing submission failed to utilize the correct and appropriate CPT Code for the medical service being billed, according to the information and belief of STATE FARM.
In order for NU-BEST to prevail in its Motion for Partial Summary Judgement, NU-BEST must demonstrate that there is no genuine issue of material facts that the claim was overdue as described in Florida Statute 627.736(4)(b) and section (10)(b). This Court finds that NU-BEST has failed to do so as evidenced by the record evidence before this Court, as described herein.
Accordingly, it is
ORDERED AND ADJUDGED:
That Plaintiff, NU-BEST WHIPLASH INJURY CENTER, INC. a/a/o SALLY LEMIEUX’s Motion for Partial Summary Judgement is DENIED.
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