21 Fla. L. Weekly Supp. 181a
Online Reference: FLWSUPP 2102ALVAInsurance — Personal injury protection — Coverage — Medical expenses — Inadequacy of record keeping is not lawful basis for nonpayment of PIP benefits — Affirmative defenses — Insurer waived defense of inadequate demand letter by failing to complain of defective demand letter until after suit was filed — Where policy does not unambiguously indicate that insurer will utilize statutory fee schedule, insurer must pay 80% of reasonable expenses — CPT codes — National Correct Coding Initiative edits, which bar physicians from administering certain services to patients on same day, are utilization limitations prohibited by PIP statute — Unbundling — No merit to unbundling defense based on impermissible NCCI edits
RIGHT CHOICE MEDICAL & REHAB, CORP. (A/A/O MARTHA ALVAREZ), Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-4319 SP 21. July 28, 2011. Honorable Ana Maria Pando, Judge. Counsel: Ryan Peterson, Patino Law Firm, Hialeah, for Plaintiff. Mary Valladares, for Defendant.
ORDER GRANTING FINAL JUDGMENT
THE COURT, after a hearing on the Plaintiff’s Motion for Final Summary Judgment, which took place on July 14, 2011, and having been otherwise advised it is hereupon,
ORDERED AND ADJUDGED as follows:
In this case, the Plaintiff moved for Final Summary Judgment, and argued that the Plaintiff was entitled to a judgment as a matter of law. Based upon the Court’s findings related to the hearing on that motion, and for the reasons stated below, the Court Grants Final Judgment in favor of the Plaintiff.
PLAINTIFF’S PRIMA FACIE CASE
The Plaintiff must show that the bills are reasonable, related, and necessary. In support of this contention, the Plaintiff filed an affidavit of Dr. Walton, the treating physician, who opined that the treatment was reasonable, related, and necessary. In opposition, the Defendant filed the affidavit of Dr. Mathesie, who stated that he felt certain of the treatment rendered by the Plaintiff was not reasonable, related, or necessary. Dr. Mathesie indicated that some of the services were not reasonable, related, or necessary because the Plaintiff did not have documentation to support the services.
This Court agrees with Judge Trachman, of Broward County, when she stated “[a]ny opinion regarding the adequacy of the records is not germane to the issue of RRN. An alleged failure to maintain adequate records is not a legal basis to support the finding that the medical services were not RRN. Florida Statute §627.736(1)(a) defines required benefits and states that every PIP policy shall pay 80% of all ‘reasonable expenses for medically necessary’ services.” . . . “[c]ompletely absent from the PIP statute is any obligation to submit medical records in order to be paid or that the medical provider meet any standard for thoroughness as precondition of payment by an insurer. Because the PIP statute noes not specifically provide that inadequate record keeping is a lawful basis for non-payment, it may not form a lawful basis for non-payment of medical bills.” See South Florida Pain & Rehabilitation, Inc. (a/a/o Kirt Godfrey) v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 981b (Fla. 17th Circ. Cty. Ct., 2009, Judge Trachman).
However, in certain portions of his affidavit, Dr. Mathesie did indicate other reasons why the various services were not reasonable, related, and necessary. This Court finds that there is no genuine issue of material fact as to whether the services were reasonable, related, and necessary for all of the services except as follows: There is a genunine issue of material fact based upon Dr. Mathesie’s affidavit as to whether code 97012-59, was reasonable, related and necessary when it was billed on the same day as code 97012. Futhermore, there is a genuine issue of material fact where code 97039 was billed with code 97012. Finally, there exists a genuine issue of material fact related to whether any of the services after March 11, 2010, were reasonable, related and necessary.
AFFIRMATIVE DEFENSES
As for the affirmative defenses, the Defendant has alleged affirmative defenses related to the demand letter, NCCI, the fee schedule, and unbundling. The Defendant had also alleged some affirmative defenses related to Fla. Stat. 627.736(6)(b), but withdrew those defenses at the hearing.
a. Demand Letter – First Affirmative Defense
The Defendant indicated that there was a problem with the demand letter in the affiramtive defenses. Without deciding whether the demand letter is accurate or not, the Court agrees with the Plaintiff that the case of United Auto v. Juan Manuel Perez, 18 Fla. Law Weekly Supp. 31a (Fla. 11th Circ. App., 2010) applies. There the Court indicated that “because insurers who reject claims are required to notify claimants as to why such claims are being rejected, an insurer who fails to complain of a defective demand letter until after suit is filed waives the defense.” The Defendant conceded that the response to the demand letter did not specifically indicate that the Defendant had a problem with the demand letter. As such, the Defendant may not bring this up after litigation commences.
b. Fee Schedules – Second Affirmative Defense
Pursuant to the recent decision in Kingsway Amigo v. Ocean Health v. Belizaire Gomez, 4D10-4887 (Fla. 4th DCA, 2011) [36 Fla. L. Weekly D1062a], an insurer is required to indicate that it will utilize the “fee schedules” in the insurance policy. This Court is very familiar with State Farm’s insurance policy and the 6910.3 endorsement, and has considered the insurance policy in this case. As is consistent with previous orders of this Court, (see, for example, Hollywood Injury (a/a/o Yvette Lee) v. State Farm, 18 Fla. L. Weekly Supp. 213a, (Fla. 11th Circ. Cty. Ct., Judge Pando, 2010), the Court holds that State Farm must pay 80% of a reasonable amount as enumerated in Fla. Stat. 627.736(5)(a)(1).
c. NCCI – Affirmative Defenses Five, Seven, and Nine
This Court has previously heard the arguments made by Mr. Peterson (one of the Plaintiff lawyers in this case, and the one arguing this motion) and his co-counsel Martin Berger, Esq., regarding NCCI, in a case entitled Glenn V. Quintana (a/a/o German Sandoval) v. State Farm, 10-2601 SP 21 (Fla. 11th Circ. Cty. Ct., Judge Pando, 2011), wherein Matt Hellman, P.A. (these defense lawyers) represented State Farm. Mr. Peterson indicated he wished to adopt the arguments previously made in that case for expediency. There, this Court found that NCCI was not provided for in the No Fault act, and even if it were, it is an impermissible medicare utilization limitation, and adopted the reasoning by several of its sister courts. See, for example, ISOT Medical Corporation, (a/a/o Maria Brito), v. State Farm, 17 Fla. L. Weekly Supp. 1244a (Fla. 11th Circ. Cty. Ct., Judge Gonzalez-Meyer, 2011); See also John S. Virga, D.C., P.A. (a/a/o Yueming Lei) v. State Farm Mutual Automobile Ins. Co., (Fla. 11th Circ. Cty. Ct., Judge Marino-Pedraza, 2010) [17 Fla. L. Weekly Supp. 384a]. The Court adopts the same ruling in this case as in the Sandoval matter, and finds that NCCI is a utilization limitation, and not permitted in the No Fault Act.
d. Unbundling – Affirmative Defenses Three, Four, Six, Eight, and Ten
As to unbundling, the treating phsyicain, Dr. Walton, addressed each service allegedly unbundled and described why said service is a separate and distinct procedure from the service which State Farm claims it is unbundled. As such, the burden shifts to the Defendant to demonstrate an issue of material fact that these services were unbundled. In resposne to this, the Defendant filed the affidavit of Ms. Bonaparte. However, Ms. Bonaparte’s affidavit, for those services at issue, finds that the codes are “unbundled” based upon the NCCI edits. This Court has already held that NCCI is an impermissible utilization limitation, and may not be used.JUDGMENT
Based upon the foregoing his Court finds that State Farm was required to pay 80% of the medical expenses up until March 11, 2010, aside from codes 97012-59 (where billed on the same day as 97012), which for purposes of this motion was January 15, 2010, January 21, 2010, and January 12, 2010. Not including the disputed 97102-59 codes, for dates of service January 14, 2010 to March 11, 2011, the Plaintiff billed $7,560.00. For those dates, the defendant paid $3,080.27. After the application of a $1,000.00 deductible, the Court finds State Farm should have paid the Plaintiff $2,167.73 for those services. The Parties have stipulated that April 6, 2010 is the date from which the interest shall run, at 6%, for those bills.
At the July 14, 2011 hearing, the Court held that the parties would have to go to trial over the remaining benefits, which total $965.58.
Subsequent to hearing, the Court was informed that the Plaintiff did not wish to go to trial over this amount, and that it is not seeking any additional amounts unless the Defendant is successful in the appeal in this case. Furthermore, the Defendant is not seeking a setoff, so any hearing on that issue is unnecessary. As such, final judgment should be entered at this time.
Given the above, the Court hereby grants Final Judgment in the amount of $2,167.73, plus 6% interest from April 6, 2010, for which let execution issue.
* * *
