23 Fla. L. Weekly Supp. 640a

Online Reference: FLWSUPP 2306JCABInsurance — Personal injury protection — Discovery — Scope of deposition of insurer’s designated corporate representative — Insurer to produce for in camera inspection copy of executed agreements/contracts between insurer and third-party auditors if utilized to adjust, process, or facilitate the adjusting or processing of claim and in effect during relevant period — Delineation of additional documents to be produced pursuant to notice of deposition duces tecum — Protective order granted with regard to documents containing the business rule that was applied to plaintiff’s bills, pursuant to which insurer determined the allowed amount for a relevant CPT code based upon 200 percent of allowable amount under participating physicians Medicare Part B schedule

XTREME CHIROPRACTIC & REHAB, INC. (a/a/o CABRERA, JACK), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-3610 COCE54. December 8, 2015. Stephen J. Zaccor, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff.

ORDER ON PLAINTIFF’S MOTION FOR APPROVALOF FORM OF NOTICE OF TAKING RULE 1.310(B)(6)DEPOSITION DUCES TECUM AND DEFENDANT’SAMENDED MOTION FOR PROTECTIVE ORDER

THIS CAUSE came before the Court on December 3, 2015 upon Plaintiff’s Motion for Approval of Form of Notice of Taking Rule 1.310(b)(6) Deposition Duces Tecum of the Defendant, and Defendant’s Amended Motion for Protective Order (and objections) that had been filed the day prior to the hearing. The Court having considered the motions and the legal authorities cited therein, the proposed Notice of Taking Deposition Duces Tecum, with Video, having heard argument of counsel and being otherwise fully advised, it is hereupon

ORDERED that Plaintiff’s Motion for Approval of Form of Notice of Taking Rule 1.310(b)(6) Deposition Duces Tecum of the Defendant is GRANTED in part and DENIED in part, and Defendant’s Amended Motion for Protective Order is GRANTED in part and DENIED in part and the objections asserted therein are SUSTAINED in part and OVERRULED in part, as follows:

1. Plaintiff shall be permitted to conduct the deposition of Defendant’s designated corporate representative and inquire regarding the following designated topics enumerated in the Notice of Taking Deposition Duces Tecum:

· General information of the Claim.

· Policy and coverage details of the Claim.

· The determination to pay the Claim at a reduced rate or otherwise refuse payment of services billed by Plaintiff for the Claim.

· Whether the amount Plaintiff charged for performing the Relevant CPT Code Procedures (CPT Code Procedures 97010, 97012, 97016, 97035, 97110, 97112, 97124, 98940, 99203, 99213 and G0283) was unreasonable and the basis, including any underlying data and data compilations, analysis, spreadsheet(s), formula(s), average(s), survey(s), research, information and investigation to support that determination.

· Whether the amount Plaintiff charged for performing the Relevant CPT Code Procedures was not usual or customary, and the basis, including any underlying data and data compilations, analysis, spreadsheet(s), formula(s), average(s), survey(s), research, information and investigation to support that determination.

· Other than the Medicare Fee schedule, Workers Compensation Fee schedule and calculations contained in Sec. 627.736(5)(a)(2)(f), Fla. Stat., all data or data compilations, analysis or analyses, spreadsheet(s), formula(s), average(s), survey(s), research, information, investigation(s) upon which Defendant has relied to dispute the reasonableness of the amounts charged by Plaintiff for performing the Relevant CPT Code Procedures.

· All items that were considered by the Defendant in determining the reasonableness of Plaintiff’s charges and how each of these items was utilized by the Defendant in calculating the reimbursement amounts.

· The method/methodology and calculations utilized in reducing the Plaintiff’s charges in this case to the allowed amount indicated in any Explanations of Review or Explanations of Benefits.

· Whether the Defendant has undertaken any research, investigation, comparative studies, statistical analysis and/or surveys of medical providers in the Community (defined as the same 330 Geo Zip where Plaintiff provided the medical services at issue) who practice in the same specialty area as the Plaintiff, within two years of the medical services that were provided by the Plaintiff in this case, for the purpose of determining (a) the usual and customary charges of medical providers in the Community for the Relevant CPT Code Procedures and (b) a reasonable charge in the Community for the Relevant CPT Code Procedures.

· The amounts charged by medical providers in the Community who practice in the same specialty area as the Plaintiff, for the Relevant CPT Code Procedures during the Relevant Period (December 1, 2007 through December 31, 2007, and June 25, 2008 through October 27, 2008).

· The amounts allowed by the Defendant for the charges of medical providers in the Community who practice in the same specialty area as the Plaintiff, for the Relevant CPT Code Procedures performed during the Relevant Period.

· Reports/charts/audits to which Defendant is privy as it relates to amounts charged by medical providers in the Community who practice in the same specialty area as the Plaintiff, for the Relevant CPT Code Procedures performed during the Relevant Period.

· The factual basis supporting the position that the Plaintiff did not charge a reasonable price for the medical services rendered to the Patient, including any evidence to support that position.

· If Defendant contends that the medical services rendered by the Plaintiff to the Patient was not related to the Automobile Accident, the factual basis supporting that position, including any evidence to support that position.

· If Defendant contends that the medical services rendered by the Plaintiff to the Patient was not medically necessary, the factual basis supporting that position, including any evidence to support that position.

· If Defendant contends that the medical services rendered by the Plaintiff to the Patient was not medically necessary or not related to the Automobile Accident, all information and documentation in Defendant’s care, custody, control or possession, which pertains, refers or relates to the Automobile Accident, including but not limited to medical records and invoices from other medical providers, accident reports, damage estimates, invoices and repair bills, photographs, statements and transcripts of Examinations Under Oath.

· The factual basis supporting each and every defense to payment asserted by Defendant as to the Claim.

2. Within 45 days, Defendant shall produce for in camera inspection with the Court, a copy of any and all executed agreements/contracts between Defendant and Mitchell Medical, Mitchell International and any other third party auditing vendor if utilized to adjust, process or facilitate the adjusting or processing of the Claim and in effect during the Relevant Period. (Duces Tecum item no. 23)

3. Within 45 days, Defendant shall produce to Plaintiff, the following items enumerated in the Duces Tecum that is part of the Notice of Taking Rule 1.310(b)(6) Deposition — the contents of which shall remain confidential and which shall not be used by Plaintiff or its counsel for any purpose other than this litigation:

· Any data or data compilations that reflect reimbursement levels for the Relevant CPT Code Procedures (CPT Code Procedures 97010, 97012, 97016, 97035, 97110, 97112, 97124, 98940, 99203, 99213 and G0283) in the Community (Geo Zip 330), during the year in which Plaintiff rendered the medical services to the Patient. (Duces Tecum item no. 20)

· A chart, report, matrix, graphic depiction, spreadsheet or other visual display that reflects the amounts charged by medical providers who practice in the same specialty area as the Plaintiff, for providing the Relevant CPT Code Procedures (CPT Code Procedures 97010, 97012, 97016, 97035, 97110, 97112, 97124, 98940, 99203, 99213 and G0283) in the Community (Geo Zip 330), during the Relevant Period (December 1, 2007 through December 31, 2007, and June 25, 2008 through October 27, 2008). The chart, report, matrix, graphic depiction, spreadsheet or other visual display responsive to this request must include the name of the medical provider, the location (address) of the medical provider, and the amount charged for the Relevant CPT Code Procedures. (Duces Tecum item no. 21)

· A chart, report, matrix, graphic depiction, spreadsheet or other visual display using Decision Point software or similar software that reflects: (1) the medical providers in the Community (Geo Zip 330) that have performed the Relevant CPT Code Procedures (CPT Code Procedures 97010, 97012, 97016, 97035, 97110, 97112, 97124, 98940, 99203, 99213 and G0283), during the Relevant Period (December 1, 2007 through December 31, 2007, and June 25, 2008 through October 27, 2008), and who have billed Defendant for those procedures; (2) the amounts that other medical providers have charged for performing the Relevant CPT Code Procedures, during the Relevant Period; (3) the amounts that Defendant has allowed as reasonable, approved or authorized charges for medical providers in the Community that have billed Defendant for the Relevant CPT Code Procedures, for procedures performed during the Relevant Period; and (4) the amounts that Defendant has paid medical providers in the Community that have billed Defendant for the Relevant CPT Code Procedures, for procedures performed during the Relevant Period. (Duces Tecum item no. 26)

4. Defendant shall produce the following items enumerated in the Duces Tecum that is part of the Notice of Taking Rule 1.310(b)(6) Deposition —

· The entire Personal Injury Protection (PIP) claim file (pre-litigation and post-litigation) maintained by Defendant, including but not limited to: any notes/records reflecting Defendant’s review of the Claim; copies of any and all checks to Plaintiff; explanation(s) of benefits/review related to Plaintiff’s medical services rendered to the Patient; Defendant’s most up-to-date PIP payout sheet, record of payment or other form showing all bills that have been submitted for payment (whether showing bills paid in full or paid at reduced rates) and documenting when payments were made of PIP benefits on the Claim, including any computerized records; each and every letter, communication or correspondence in which Defendant notified Plaintiff of its failure to comply with any statutorily or contractually imposed conditions precedent to payment or suit; any and all responses by Defendant to Plaintiff’s demand letter(s); and actions taken by Defendant on the Claim. Defendant shall waive no applicable privileges by bringing documents to the deposition to which Defendant may refer at the deposition. (Duces Tecum item no. 1)

· Copies of the Policy and Policy Declarations Page. (Duces Tecum item no. 2)

· A copy of the Notification of Insured’s Rights as required by Fla. Stat. Sec. 627.7401 delivered by Defendant to the Insured (the “Notice”), including, but not limited to: the Notice, copies of any cover letter(s) or other correspondence accompanying the Notice and copies of any documents, papers or other forms or letters included with the Notice. (Duces Tecum item no. 3)

· Any and all documents reflecting bills submitted by Plaintiff and the dates that the bills were received by Defendant under the Claim, including Plaintiff’s bills reflecting Defendant’s date stamps and Defendant’s logs showing date of receipt of the bills. (Duces Tecum item no. 4)

· Any and all correspondence, documents, materials or other items regarding the medical reports and bills received from Plaintiff related to treatment provide to the Patient. (Duces Tecum item no. 5)

· To the extent that they exist, any and all Independent Medical Examination (“IME”) requests and IME Reports related to the Patient. (Duces Tecum item no. 6)

· To the extent that they exist, any and all Examinations Under Oath (“EUO”) requests, correspondence from the Defendant related to an EUO of the Patient, EUO transcripts related to the Patient or the Automobile Accident and any and all correspondence from any agencies hired by Defendant to schedule an EUO of the Patient, who were in attendance at the time of the scheduled EUO. (Duces Tecum item no. 7)

· To the extent that they exist, any and all reports or medical opinions or records review conducted in connection with Plaintiff’s medical services rendered to the Patient. (Duces Tecum item no. 8)

· Any and all statements taken by Defendant of any witnesses with regard to any fact relevant to any issues in this case, taken prior to the filing of the lawsuit in this matter. (Duces Tecum item no. 9)

· Copies of any and all medical records and billing records of other Providers of medical treatment/MRI/x-rays/emergency services rendered to the Patient in this Claim. (Duces Tecum item no. 10)

· Documents evidencing damage to the vehicle in which the Patient was an occupant, resulting from the Automobile Accident, including but not limited to estimates of property damage, repair bills, photographs and accident reports. (Duces Tecum item no. 11)

· Any and all reports or statements from any expert indicating that the treatment rendered by Plaintiff was not reasonable, not related or not necessary. (Duces Tecum item no. 12)

· Any and all information in Defendant’s possession which Defendant reviewed or upon which Defendant relied in calculating the “reasonable amount” as defined in Fla. Stat. Sec. 627.736(5)(a)(1) for Plaintiff’s medical services rendered to the Patient. (Duces Tecum item no. 13)

· Any State or Federal medical fee schedules that were applicable to automobile and other insurance coverages [other than the schedule of limited reimbursement contained in Fla. Stat. Sec. 627.736(5)(a)(2)(b)] for the Relevant CPT Code Procedures, if relied upon in this case. (Duces Tecum item no. 14)

· Any and all proof upon which Defendant relies [other than the calculations contained in Fla. Stat. Sec. 627.736(5)(a)(2)(b)] to dispute that the amounts charged by Plaintiff for the Relevant CPT Code Procedures were not reasonable charges. (Duces Tecum item no. 15)

· Other than the Policy, Medicare Fee Schedule and calculations contained in Fla. Stat. Sec. 627.736(5)(a)(2)(b), any and all other documents reflecting any other relevant information considered by Defendant in determining, considering, assessing or evaluating the reasonableness or unreasonableness of Plaintiff’s Charges for performing the Relevant CPT Code Procedures. (Duces Tecum item no. 16)

· Any data and data compilations, analysis, spreadsheet(s), formula(s), average(s), survey(s), research, information and investigation(s) relied upon by Defendant in determining or calculating the “approved amounts” of the Charges/Submitted Amounts for the Relevant CPT Code Procedures. (Duces Tecum item no. 17)

· To the extent that they exist, surveys of medical providers in the Community, that evidence, show or indicate the charges of medical providers in the Community for providing the Relevant CPT Code Procedures during the Relevant Period. (Duces Tecum item no. 18)

· Mathematical calculations, statistical analyses and data upon which Defendant relies to reduce the Charges and/or support its position that Plaintiff’s Charges are not reasonable. (Duces Tecum item no. 19)

· Documents evidencing any investigation, research, comparative studies, statistical analysis or surveys undertaken by Defendant to determine, consider, assess or evaluate the reasonableness or unreasonableness of Plaintiff’s Charges for performing the Relevant CPT Code Procedures. (Duces Tecum item no. 22)

· Any and all documents that evidence, demonstrate or show that Defendant “auto-processed” the Claim or that Defendant did not “auto-process” the Claim. (Duces Tecum item no. 25)

· Copies of each and every document that supports, proves or tends to support any of the affirmative defenses Defendant asserts in the present litigation. (Duces Tecum item no. 27)

4. Defendant’s Motion for Protective Order is GRANTED and Defendant’s objection SUSTAINED with regard to Duces Tecum item number 24. Defendant need not produce documents that contain the business rule that was applied to Plaintiff’s bills pursuant to which Defendant determined the allowed amount for a Relevant CPT Code Procedure based upon 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.