27 Fla. L. Weekly Supp. 295a
Online Reference: FLWSUPP 2703MARLInsurance — Personal injury protection — Coverage — Medical expenses — Timeliness of claim — Explanation of reimbursement seeking proof of timeliness of billing is not valid request for documentation regarding reasonableness of charges or necessity of treatment under section 627.736(6)(b) — Even if EOR was valid request for documentation, request sent more than 30 days after receipt of claim is untimely — Medical provider had no obligation to respond to invalid request for documentation — Where provider met burden of proving bills were timely mailed to insurer, provider’s motion for summary judgment as to insurer’s untimely billing defense is granted
OPTIMUM ORTHOPEDICS & SPINE, LLC. a/a/o Deborah Marley, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2017-SC-003827-O. April 11, 2019. Eric H. DuBois, Judge. Counsel: Annette M. Castillo, Landau & Associates, P.A., Orlando, for Plaintiff. Rhamen M. Love-Lane, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AS TODEFENDANT’S UNTIMELY BILLING DEFENSE
THIS CAUSE having come before the Court on March 13, 2018 for hearing on Plaintiff’s Motion for Summary Judgment as to Defendant’s Untimely Billing Defense. The Court, having reviewed Plaintiff’s Motion for Summary Judgment, the record, having heard arguments of counsel and being otherwise fully advised in the premises, the Court finds as follows:
BACKGROUND
This case arises out of a claim for Personal Injury Protection (“PIP”) benefits as a result of an automobile accident occurring on August 24, 2015. Defendant issued a policy of insurance which included $10,000.00 in PIP benefits which did inure to the benefit of Deborah Marley (“Claimant”) and was in full force and effect at all times relevant to the accident occurring on August 24, 2015.
Following the accident, Claimant presented to Optimum Orthopedics & Spine. Claimant executed an Assignment of Benefits (“AOB”). Plaintiff billed Defendant for the treatment rendered to Claimant and Defendant issued payment to Plaintiff. Plaintiff then made a demand upon Defendant for additional payment pursuant to the policy. Defendant did not make any additional payments in response to Plaintiff’s demand. Plaintiff subsequently filed the instant suit on February 24, 2017.
On October 16, 2017 Defendant filed its Answer, Affirmative Defenses and Demand for Jury Trail. As its Second Affirmative Defense, Defendant raised the issue of timeliness, alleging Plaintiff failed to timely submit its charges within 35 days of the services allegedly rendered. On October 29, 2018, Plaintiff filed its Motion for Summary Judgment as to Defendant’s Untimely Billing Defense. Plaintiff filed the affidavit of Amber Glantz which established when each bill was sent to Defendant.
Plaintiff argued it followed its usual and customary business practices and billed Defendant timely for all services rendered to the claimant. Defendant argued Plaintiff’s bills were received untimely and Plaintiff never responded to Defendant’s 6(b) request for proof of timely billing.
ANALYSIS
Florida Statute 627.736(6)(b), which is clear and unambiguous, provides:
(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES. —
(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested by the insurer against whom the claim has been made, furnish a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial. Such sworn statement must read as follows: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” A cause of action for violation of the physician-patient privilege or invasion of the right of privacy may not be brought against any physician, hospital, clinic, or other medical institution complying with this section. The person requesting such records and such sworn statement shall pay all reasonable costs connected therewith. If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. As used in this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. An insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code. (emphasis added)
The language of the statute is absolutely clear, 6(b) requests under §627.736 Fla. Stat. are to be utilized for purposes of ascertaining the reasonableness and necessity of the treatment. Florida Statute §627.736(6)(b) does not exist as an excuse for Defendant to withhold payment from a provider or for requests unrelated to the reasonableness and necessity of the treatment provided. In the instant case, Defendant produced an Explanation of Reimbursement (“EOR”) which stated at the bottom, “This is a written request pursuant to Fla. Stat. 627.736(6)(b). Medical bills not submitted within 35 days of the date of services, unless proof of timely filing is provided, are not reimbursable by the patient, insured or insurance carrier. For further information refer to FL Statute 627.736(5)(c)1.” See Exhibit C of Defendant’s Motion for Summary Judgment and Memorandum of Law in Support Thereof, Orange County Case No. 2017-SC-003827-O. This is clearly not a valid request under Florida Statute §627.736(6)(b). It is merely a statement which does not request any documentation regarding the reasonableness and/or necessity of the treatment provided or its cost. Defendant’s argument further fails because even had the statement in Defendant’s EOR been a valid 6(b) request under the statute, it was untimely. Defendant’s EOR shows the bills in question were received on 9/27/2016, however, the EOR with the alleged request is dated 11/9/2016. Florida Statute §627.736(6)(b) clearly gives the insurance carrier 30 days from having acquired notice of the covered loss to send its valid 6(b) request to the provider. Defendant waited 43 days to issue the EOR with the invalid 6(b) request. Because the allged request was not a valid request under Florida Statute §627.736(6)(b) and was furthermore untimely, this Court finds Plaintiff was under no obligation to respond to the statement at the bottom of Defendant’s EOR.
Plaintiff’s affidavit (along with the corresponding attachments) of Amber Glantz, clearly establishes the HCFAs or bills in question were all timely submitted to Defendant within thirty-five (35) days of each date of service. The affidavit confirms each bill was submitted timely in accordance with Florida law.
Florida Statute Section 627.736(5)(c)(1) clearly provides the following:
The statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment services rendered up to, but not more than, 75 days before the postmark date of the statement.
Florida Statute Section 627.736(5)(c)(4) also provides:
BILLING REQUIREMENTS. — Florida Statutes provide that with respect to any treatment or services, other than certain hospital and emergency services, the statement of charges furnished to the insurer by the provider may not include, and the insurer and the injured party are not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement.
Plaintiff has filed competent evidence, through the affidavit of Amber Glantz, showing Plaintiff followed its usual and customary business practices along with supporting documentation demonstrating the date each bill in question was submitted to the Defendant. Defendant filed nothing in opposition to Plaintiff’s motion for summary judgment but only claimed it did not receive the bills timely. Defendant cannot challenge the mailing solely by asserting it did not receive the bills to create a material issue of fact. See Eduardo J. Garrido, D.C. P.A. a/a/o Angelica Rodriguez v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 1196a (11th Jud. Cir. Cty. Ct. Sept. 9, 2008).
CONCLUSIONS OF FACT AND LAW
The standard of review for granting a Motion for Summary Judgment is well-settled. Florida Rule of Civil Procedure 1.510 provides, in pertinent part, that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on the file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Moreover, the rule obligates the trial court draw every favorable inference in favor of the non-moving party. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
This Court finds Plaintiff met its burden of proving the bills for dates of service 12/14/15, 3/3/16, 5/12/16, 6/9/16 and 7/22/16 were timely submitted by Plaintiff within 35 days as required by Florida law. Defendant filed no evidence rebutting Plaintiff’s evidence showing timely submission. See Camerota v. Kaufman, 666 So. 2d 1042, 1044 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D289g]; and, Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla. 1973). Therefore, Plaintiff’s bills for dates of service 12/14/15, 3/3/16, 5/12/16, 6/9/16 and 7/22/16 are due and owing.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Summary Judgment as to Defendant’s Untimely Billing Defense is GRANTED.
