27 Fla. L. Weekly Supp. 296a
Online Reference: FLWSUPP 2703DMARInsurance — Personal injury protection — Demand letter — Sufficiency — Demand letter with attached itemized statement complied with PIP statute — No merit to claim that demand letter was premature because provider did not respond to insurer’s request for documentation where explanation of reimbursement that disputed timeliness of bills but did not request any documentation regarding reasonableness charges or necessity of treatment is not valid request and, even if valid, request that was issued more than 30 days after receipt of bills was untimely — No merit to claim that demand letter is premature because insurer did not receive bills for all charges demanded where it is only relevant that provider sent bills, not whether insurer received bills, and record shows that insurer did receive bills
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, Orlando, for Plaintiff. Rhamen M. Love-Lane, Orlando, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND MEMORANDUM OF LAW
THIS CAUSE having come before the Court on March 13, 2018 for hearing on Defendant’s Motion for Summary Judgment and Memorandum of Law. The Court, having reviewed Defendant’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.
Defendant filed its Answer and Affirmative Defenses in which they plead Plaintiff failed to serve a proper and legally compliant demand letter prior to the initiation of the instant action. On August 31, 2018, Defendant filed its Motion for Summary Judgment and Memorandum of Law (the “Motion”). Defendant’s Motion alleged Plaintiff’s pre-suit demand letter failed to comply with Florida Statute 627.736(10) because the pre-suit demand letter did not account for the “permissive fee schedule,” the demand letter was premature, the patient ledger attached to the pre-suit demand letter listed a different amount due by the insurer than the amount demanded by the pre-suit demand letter and the pre-suit demand requested payment for bills that were allegedly never received by Defendant.
Defendant argued because the amounts reflected on the last page of the patient ledger did not match the amount listed on the pre-suit demand letter, the letter failed to meet the requirements of §627.736(10), Fla. Stat. Additionally, the pre-suit demand was premature because Plaintiff failed to respond to Defendant’s request pursuant to §627.736(6)(b), Fla. Stat. Defendant further argued the pre-suit demand letter was invalid because there was no way for Defendant to determine how much to pay in order to avoid litigation. Finally, Defendant argued the pre-suit demand letter was premature and invalid under §627.736(10), Fla. Stat. because it requested payment for bills never received by Defendant.
Plaintiff argued §627.736(10), Fla. Stat., makes no requirement the pre-suit demand letter calculate an exact amount. Further, the Defendant was able to review the claim and make the determination no further payment would be issued. Plaintiff additionally argued the request issued by Defendant was not a valid 6(b) request pursuant to §627.736, Fla. Stat. and therefore irrelevant. Furthermore, the alleged request was untimely. Lastly, Plaintiff argued the pre-suit demand letter was not premature because it does not matter whether Defendant never received the bills in question, but rather that they were sent by Plaintiff.
ANALYSIS
Florida Statute 627.736(10), which is clear and unambiguous, provides:
(10) DEMAND LETTER. —
(a) As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer. 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 must state that it is a “demand letter under s. 627.736” and 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) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
The facts in this case are not in dispute. Plaintiff provided Defendant a Demand Letter that included an assignment of benefits and itemized statement containing the information required by the statute quoted above. The itemized statement sent with Plaintiff’s demand letter included the exact dates of service at issue, the CPT codes at issue, the exact charges for those codes and a description of the type of service, treatment or accommodation provided by Plaintiff. Defendant had an opportunity to review all dates of service, CPT codes and type of treatment billed and based on its review made the determination no additional payment was due. Ultimately, the purpose of the demand letter requirement is to put the insurance carrier on notice of Plaintiff’s intent to initiate litigation and give the insurance carrier a second opportunity to review the charges at issue. This issue has already been addressed by this Court in the past and the Court will not stray from its previous holding. The purpose of the pre-suit demand letter is to advise Defendant of information it may not have and give the Defendant a second opportunity to adjust the claim. It is the responsibility of the insurance carrier to adjust the claim, not the medical provider. See Florida Injury Kissimmee, LLC a/a/o Avonda Perry v. United Services Automobile Asssoc., 26 Fla. L. Weekly Supp. 119b (Fla. Orange Cty. Ct. 2018); see also Professional Medical Building Group, Inc. a/a/o Luisa R. Grasset v. State Farm Mutual Automobile Insurance Company, 25 Fla. L. Weekly Supp. 473a (Fla. 11th Jud. Cir., Cty. Ct.) citing St. Johns Medical Ctr. a/a/o Melissa Brown v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 457a.
Defendant additionally raised the issue of the timeliness of Plaintiff’s pre-suit demand letter. First, Defendant took issue with Plaintiff failing to respond to Defendant’s alleged “6(b)” request. 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 alleged 6(b) request 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 6(b) 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 request was not a valid request under Florida Statute §627.736(6)(b) and was furthermore untimely, this Court finds Plaintiff’s demand letter was not premature.
Finally, Defendant argued Plaintiff’s demand letter was invalid under §627.736(10), Fla. Stat. because Defendant never received certain bills from Plaintiff. This argument fails on two counts. First, §627.736(5)(c), Fla. Stat. requires a provider to furnish to the insurer charges for treatment or services rendered, not more than 35 days after the date of treatment or services rendered, unless a notice of initiation of treatment is provided, in which case the statement may be postmarked not more than 75 days after the date of service or treatment. Whether or not statements were furnished timely by the provider to the Defendant can only be proven by the provider. Therefore, it is irrelevant whether the Defendant ever received the bills, only whether the provider furnished, or sent, the bills within the statutory time frame. Secondly, Defendant’s argument fails because Defendant, on its own admission, did receive the bills in question for dates of service 12/14/15, 3/3/16, 5/12/16, 6/9/16 and 7/22/16. 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.
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 that Plaintiff’s demand letter complied with all requirements of Fla. Stat. §627.736(10). By attaching the itemized statement to the demand letter, the Plaintiff provided Defendant with all the information necessary in order to review all dates of service, CPT codes billed and the exact charges, or amount due, for each code. Ultimately, the insurance carrier is the only party in a position to know exactly what is owed. The insurance carrier is the only one aware of how much it has paid in total benefits to date, how much and the type of coverage the policy provides for, whether the subject policy includes Medical Payments coverage or a PIP deductible. Many times, a provider is not privy to any of this information until after it has filed suit and commenced discovery. See Neurology Partners, P.A. v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 101b (Fla. Duval Cty. Ct. 2013). See also EBM Internal Medicine a/a/o Bernadette Dorelein v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a (Fla. Duval, Cty. Ct.).
This Court further finds Defendant did not serve a valid 6(b) request as provided under Florida Statute §627.736(6)(b). Therefore, Plaintiff had no duty to respond. Furthermore, the pre-suit demand letter was not premature as it is irrelevant whether Defendant received Plaintiff’s bills only that Plaintiff sent the bills. The record and filings make it absolutely clear the Plaintiff not only sent the bills in question, but Defendant did in fact receive the bills.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED:
1. Defendant’s Motion for Summary Judgment and Memorandum of Law is DENIED.
