27 Fla. L. Weekly Supp. 180a
Online Reference: FLWSUPP 2702ROSAInsurance — Personal injury protection — Affirmative defenses — Failure to comply with recordkeeping standards of administrative rules not lawful basis for nonpayment of PIP benefits — Motion to strike affirmative defense is granted
BEDFORD MEDICAL CHIROPRACTIC, a/a/o Christopher Rosario, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-002897-O. April 14, 2015. Steve Jewett Judge. Counsel: Crystal Eiffert and Robert Morris, Orlando, for Plaintiff. Robert Lyerly, Orlando, for Defendant.[Related order at 26 Fla. L. Weekly Supp. 121b]
ORDER ON PLAINTIFF’S MOTION TO STRIKEAND/OR MOTION FOR MORE DEFINITE STATEMENTAS TO DEFENDANT’S AFFIRMATIVE DEFENSE #3
This cause came on for consideration by the undersigned on the Plaintiff’s Motion to Strike and/or Motion for More Definite Statement as to Defendant’s Affirmative Defense #3, a hearing was held February 20, 2015, and court having heard argument and considered the motion finds as follows:
1. This Court has jurisdiction to consider the matter and to render its judgment as set forth herein below.
2. Christopher Rosario, was involved in a motor vehicle accident in which assignor sustained personal injuries.
3. As a direct and proximate result of the injuries sustained in the accident, Mr. Rosario incurred reasonable expenses for necessary medical, rehabilitative, nursing and remedial care.
4. The Defendant issued a policy of insurance which provided Personal Injury Protection benefits and Medical Expense Benefits Coverage required by law to comply with Florida Statutes §627.730-627.7405.
5. The above described policy was in full force and effect on the date of the accident and provided Personal Injury Protection coverage and/or medical expense coverage for Mr. Rosario for bodily injuries sustained in the subject accident.
6. Christopher Rosario executed an Assignment of Benefits assigning his rights, title and interest under said policy of insurance to the Plaintiff, for treatment related to said automobile accident.
7. Plaintiff gave notice of a covered loss to the Defendant and made a demand for No-Fault benefits for reasonable, necessary and related medical, rehabilitative, and remedial treatment for date of service 04/07/11 – 05/27/11.
8. Defendant did not make full payment of the Plaintiff’s invoice for payment of benefits within thirty (30) days as required by Florida Statute 627.736(4)(b).
9. Plaintiff filed a Statement of Claim based on the above.
10. On September 26, 2014, the Defendant filed an Answer and Seven Affirmative Defenses.
11. In its Third Affirmative Defense, Defendant claims that Plaintiff has failed to comply with the minimal recordkeeping standards for chiropractic treatment as set for in Florida Administrative Code §64B2-17.0065.
12. Florida Statutes 627.736(5)(b)1 holds:
An insurer or insured is not required to pay a claim or charges:
a. Made by a broker or by a person making a claim on behalf of a broker;
b. For any service or treatment that was not lawful at the time rendered;
c. To any person who knowingly submits a false or misleading statement relating to the claim or charges.
13. 627.732(11) defines “Lawful” or “lawfully” as:
“(I)n substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.
14. Florida Administrative Code 64B2-17.0065(3) provides:
The medical record shall be legibly maintained and shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course. and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs dispensed or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. Initial and follow-up services (daily records) shall consist of documentation to justify care. If abbreviations or symbols are used in the daily recordkeeping, a key must be provided. (emphasis added)
15. The Defendant alleged “Plaintiff’s medical and billing records are patently deceptive, incomplete, inaccurate and misleading and thus fail to meet the minimal recordkeeping standards of Florida’s Administrative Code. Specifically, the medical records do not support the CMS-1500 forms submitted by Plaintiff as the forms include CPT Codes for services not properly documented in the medical reports.” The Defendant goes on to list nine(9) specific areas they allege to be “deficiencies’ in the Plaintiff’s medical recordkeeping.
16. The “deficiencies” listed by the Defendant include;
a. Failed to include mechanism of the administration.
b. Failed to indicate the rational for the use(of the treatment).
c. Failed to indicate the patient’s response to the treatment.
d. Failed to indicate how the long the treatment lasted.
e. Failed to indicate the administration of the treatment.
f. Failed to indicate the treatment was attended or unattended.
g. Failed to support the amount of time spent providing the service.
h. Failed to indicate what exercises performed.
i. Failed to indicate the rationale for the exercises performed.
j. Failed to indicate the time spent of the number of repetitions performed.
k. Failed to indicate the credentials or the identity of the persons supervising the exercises.
l. Failed to indicate whether the exercises were performed in a group or individually.
17. The Plaintiff filed their Motion To Strike And/Or Motion For More Definite Statement As To Defendant’s Affirmative Defenses. The Court ruled on objections to Affirmative Defenses in a separate Order. All that remains is Plaintiff’s Motion to Strike Affirmative Defense #3.
18. The Defendant alleges that if a provider does not keep records to the minimal standards in the rule1, the provider’s care is unlawful and therefore, not compensable. That is a very large jump in logic.
19. Administrative Code §64B2-17.0065 deals specifically with “recordkeeping” only. There is no provision for a penalty if the rule is not followed. There is no mention made of the rule affecting payment of insurance benefits or medical bills. In fact, there is no mention of any method of enforcement or who or what agency would be responsible for such enforcement. It merely indicated what minimum records should be kept.
20. The purpose given by the Board Of Chiropractic Medicine(Board) in promulgating the rule bears that out. Florida Administrative Code 64B2-17.0065(2) provides:
(2) Medical records are maintained for the following purposes:
(a) To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment.
(b) To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition.
(c) To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care.
(d) To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient.
21. The Board made no mention of recordkeeping for litigation purposes. In fact, the only mention of reordkeeping in the legal context is (d) which requires it to protect the legal interests of the “patient, hospital and the practitioner” NOT the insurer.
22. If the Legislature had intended a scenario to result in a PIP provider’s bill being not payable, “it could have said so.” Florida Medical & Injury Center, Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 338 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. Therefore, although medical providers are required to maintain a certain level of medical recordkeeping, it does not follow that failure to do so renders a provider’s treatment gratuitous. See id. at 341 (“Florida statutes are filled with duties and requirements unaccompanied by penalties or consequences for noncompliance. The courts are not at liberty to manufacture one.”).
23. Because the PIP statute does 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. South Florida Pain & Rehabilitation, Inc. v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 981b (Broward Cty. Ct. 2009).
24. The Defendant does not have a private right of enforcement in the administrative code, regulatory statutes, licensing compliance regulations or medical record standards. If the facility and the treating physicians are properly licensed by the State of Florida or regulatory boards that govern these entities, then the Defendant’s inquiry ends there. The Defendant may not parse the statute or administrative requirements and inquire into the treating physician’s compliance with those requirements. Further, the Court finds that such an inquiry does not go to the efficacy of the treatment, causal connection or reasonableness of the charge and is therefore not reasonably calculated to lead to the discovery of admissible evidence. Raymond Ali vs. Gloria M. McCarthy, 17 Fla. L. Weekly Supp. 661a.(Seminole Cty Ct. 2010).
THEREFORE it is hereby ORDERED AND ADJUDGED:
The Plaintiff’s Motion to Strike Defendant’s Affirmative Defense #3 is GRANTED.
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1The objections raised by the Defendant go way beyond the minimum standards established by the rule. The Defendant is asking the Court to find the rule requires a significant and somewhat ridiculous amount of specificity. It would be unreasonable to follow the Defendant’s interpretation of the requirements of the rule.
