21 Fla. L. Weekly Supp. 858a
Online Reference: FLWSUPP 2109MACLNOT FINAL VERSION OF OPINION
Subsequent Changes at 22 Fla. L. Weekly Supp. 20aInsurance — Personal injury protection — Demand letter — Sufficiency — Demand letter with attached and referenced itemized billing ledger substantially complied with requirements of section 627.736(10) — There is no requirement that CPT codes be included in demand letter
BAYFRONT MEDICAL CENTER, INC., a/a/o Ramsay Macleish, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 13-000034AP-88A. UCN 522013AP000034XXXXCI. May 7, 2014. Appeal from Final Judgment Pinellas County Court, Judge Kathleen T. Hessinger. Counsel: David M. Caldevilla and Michael R. Bray, Tampa; Russel Lazega and Yasmin Gilinsky, Florida Advocates, Dania Beach; and James D. Underwood, for Appellant. Douglas H. Stein, Miami; and Stephanie Martinez, for Appellee.
(PER CURIAM.) The trial court entered a Final Summary Judgment in favor of Defendant-below, USAA Casualty Insurance Company, and dismissed the underlying action based on a failure to meet a condition precedent. Plaintiff-below, Bayfront Medical Center, Inc., as assignee of Ramsey Macleish, appeals the decision. Upon review of the briefs and the original and supplemental record on appeal, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. We reverse and remand for further proceedings.Statement of Facts
Ramsay Macleish received treatment at Bayfront Medical Center, Inc. for injuries resulting from a motor vehicle accident that occurred on March 20, 2008. Bayfront, as assignee of Ramsay Macleish, submitted an itemized billing ledger to USAA Casualty Insurance Company for five procedures performed on March 20, 2008:
It should be noted that the following items have been coded as indicated on the billing ledger:
Hydration IV Infusion, I HCPCS1\CPT Code2: 90760 $426.44
Hydrate IV Infusion, ADD HCPCS\CPT Code: 90761 $284.29
(Emphasis added). Thereafter, USAA sent the Explanation of Reimbursement (EOR) to Bayfront: [Editor’s note: image omitted] It should be noted that USAA’s EOR used an incorrect CPT Code for the two referenced procedures:
CPT Code: 90780 IV Infus Therapy/DX-by-Phys/Supervs; T
CPT Code: 90781 IV Infus Therapy/DX-Phys/Supervs; EA H
(Emphasis added). There is no dispute that this error solely was made by USAA.
The EOR stated that the reimbursement amount for these two procedures was $0.00. The reason for the denial of reimbursement for these two items (Code AD100) stated, “Procedure Code-Invalid: Procedure code for this item is not invalid for the date of service indicated. According to CPT, this code has been deleted or was not in effect for the indicated date of service.” The remaining three procedures on the billing ledger were reimbursed at 75% by USAA.
On July 27, 2010, Bayfront sent a Demand Letter to USAA pursuant to Section 627.736(10), Florida Statutes (2008).3 Attached to the Demand Letter was the itemized billing ledger as set out above with the correct codes 90760 and 90761 for the two procedures at issue. The demand letter stated in part:
Please see attached HICF or itemized billing ledger for a detailed statement of the charges at issue. The following is a breakdown of the amounts owed:
$4,005.80 @ 80% = $3,204.64 less the $1,977.05 payments = $1,227.59 owed. DOS 03/20/2008 to 03/20/2008. Please advise if you will not honor the CPT code you may use HCPS code G0345 for code 90780 and G0346 for 90781.
(Emphasis in original). The Demand Letter does not notify USAA that USAA incorrectly assigned CPT codes 90780 and 90781 to the two procedures at issue rather than the correct CPT codes 90760 and 90761. Instead, Bayfront gave USAA alternate codes to use for reimbursement of the incorrect CPT codes. The Demand Letter does not reference the correct CPT codes, but does reference the attached itemized billing ledger that identifies the correct codes.
The Demand Letter also requests reimbursement at 80% for the remaining three procedures for which USAA remitted reimbursement funds at only 75%, allegedly pursuant to section 627.736(5)(a)(2)(b).4 Thereafter, USAA did not remit the $1,227.59 as requested.
Bayfront, as the assignee of Ramsay Macleish, filed a complaint against USAA for breach of contract relating to a claim for Personal Injury Protection benefits. USAA filed a “Motion for Summary Judgment Regarding the Insufficiency of Plaintiff’s Demand Letter” arguing that Bayfront failed to meet the condition precedent of issuing a valid pre-suit Demand Letter under section 627.736(10).
After a hearing, the trial court granted USAA’s motion for summary judgment. The Order states that Bayfront failed to provide an “itemized statement specifying each exact amount claimed to be due.” The trial court held that attaching the original itemized bill to the Demand Letter did not cure the noncompliance. Bayfront’s complaint was dismissed for failure to comply with the condition precedent to filing the action because it failed to “substantially comply” with section 627.736(10)(b)(3) to give USAA knowledge of disputed issues.Standard of Review
This Court acting in its appellate capacity reviews de novo an order granting summary judgment. Summary judgment should be granted only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law.” JP Morgan Chase v. New Millennial, LC, 6 So. 3d 681, 684 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D585a]. A defendant, as the movant for summary judgment, bears the burden of proving conclusively that the plaintiff cannot prevail. Copeland v. Albertson’s Inc., 947 So. 2d 664, 667-68 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D322a].Analysis
Section 627.736(10), Florida Statutes (2008) states in part:
(10) Demand letter. —
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(10)” and shall state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d)5 or the lost-wage statement previously submitted may be used as the itemized statement. . . .
(Emphasis added).
In the Demand Letter, Bayfront stated that the amount at issue was: “$4,005.80 @ 80% = $3204.64 less the $1,977.05 payments = $1,227.59 owed.” In the order granting summary judgment, the trial court faulted Bayfront for its failure to specify that it sought $426.44 and $284.29 for the claims totally denied by USAA. However, the Demand Letter in the total amount requested to be remitted did notify USAA that it was seeking reimbursement for these two procedures at an 80% reimbursement, in addition to the funds allegedly due for the remaining three procedures that were paid only at 75% rather than the 80%. Included in the calculations set forth in the Demand Letter was a deduction for the $1,977.05 already paid by USAA. The total due and owing from USAA according to Bayfront’s calculations was $1,227.59.
This Court has conducted a de novo review of the Demand Letter, with the specific reference therein to the attached itemized billing ledger. In its Answer Brief, USAA argues that “strict compliance,” not just substantial compliance, with section 627.736(10)(b) is required of demand letters. The District Court of Appeal cases cited by USAA indicate that “precision” in a demand letter is required. See MRI Assoc. of Am. LLC v. State Farm Fire and Casualty Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]; see also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63, 68 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a](noting in dicta that section 627.736(10)(b)(3) requires precision in “ ‘each exact amount’ owed”).6 “Precision” is not the equivalent of a requirement that there be “strict compliance” with section 627.736(10). The trial court properly found that “substantial compliance” with section 627.736(10) is the correct standard.
This Court finds that the attached itemized billing ledger for the procedures performed on March 20, 2008, complies with section 627.736(5)(d), as referenced in section 627.736(10)(b)(3). Therefore, contrary to the trial court’s finding, the Demand Letter with the attachment meets the requirement for an “itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due” in section 627.736(10)(b)(3). There is no requirement under the statute that CPT codes must be included in the Demand Letter.
The reference in Bayfront’s Demand Letter to the incorrect CPT Codes was inapposite, and could have been confusing to USAA. However, in our de novo review, this Court concludes that the Demand Letter with the attached and referenced itemized billing ledger did “substantially comply” with the requirements of section 627.736(10). We hold the Demand Letter and attachment with “precision” and specificity placed USAA on notice of a discernible sum that would have allowed USAA to avoid litigation: $1,227.59. The trial court’s final order dismissing Bayfront’s cause of action for failure to meet a condition precedent is reversed.
Reversed and remanded for further proceedings. (ALLAN, SCHAEFER, and MEYER, JJ.)
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1Healthcare Correct Procedural Coding System (HCPCS).
2Current Procedural Terminology (CPT), is a registered trademark of the American Medical Association used to report medical procedures and services under public and private health insurance programs. See Allstate Fire & Cas. Ins. Co. v. Perez ex rel. Jeffrey Tedder, M.D., P.A., 111 So. 3d 960, 961 n.1 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D915a].
3The statute in effect on the date the insurance policy was issued governs substantive issue arising in connection with that contract. Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010) [35 Fla. L. Weekly S222b]. The policy at issue in this case was issued on February 23, 2008. (R 224).
4The issue of whether USAA should have reimbursed the funds at the rate of 80% rather than the 75% remitted was not determined by the trial court because the Demand Letter was found to be insufficient. This issue must be resolved in the underlying action.
5The 2008 version of section 627.736(5)(d) governing charges for treatment of injured persons states:
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). . . . 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.
6The trial court’s order granting final summary judgment in Reinhart Chiropractic Clinic v. State Farm Mutual Automobile Insurance Co.,, 17 Fla. L. Weekly Supp. 28a (Fla. 6th Jud. Cir. Ct. 2009), concerns the insurance company’s denial of payment of two bills and does not address a demand letter. The motion for summary judgment attached to the trial court’s order by the Editor for informational purposes is not the ruling of the trial court. Further, neither the trial court below, nor this Court, is bound by the holding of the appellate panel of the Thirteenth Judicial Circuit Court in Chambers Medical Group, Inc. v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Jud. Cir. App. Ct. Dec. 1, 2006), concluding that a strict compliance standard is required for a demand letter under section 627.736(10).
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