27 Fla. L. Weekly Supp. 835a
Online Reference: FLWSUPP 2709BATIInsurance — Personal injury protection — Coverage — Medical expenses — Insurer’s failure to pay claim within 30 days or even during 60-day investigation period allowed by section 627.736(4)(i) does not constitute acquiescence to claim or eliminate right to contest claim — Licensed health care clinic may be reimbursed under PIP statute for non-massage services provided by licensed massage therapist
PARK PLACE THERAPY, LLC, a/a/o Enrique F. Batista, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 18-CC-006791, Division H. July 2, 2019. Alissa M. Ellison, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. John Mollaghan, Staff Attorney, Windhaven Insurance, Miami, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’SAMENDED MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 4, 2019 on Plaintiff’s Amended Motion for Summary Judgment filed April 26, 2019. Based on the pleadings, motion, record evidence, and arguments of counsel, the Court hereby grants in part and denies in part Plaintiff’s Amended Motion for Summary Judgment and finds as follows:
Factual Background
1. Plaintiff’s Amended Complaint asserts a breach of contract action against Defendant seeking damages relative to Defendant’s alleged failure to properly reimburse Plaintiff Personal Injury Protection (PIP) benefits for services rendered to Defendant’s insured, Enrique Batista, after he was involved in an automobile accident on December 11, 2016.
2. The services for which Plaintiff seeks reimbursement in this matter are non-massage services rendered by a licensed massage therapist (LMT). Notably, none of the services at issue are massage services.1
3. Defendant denied Plaintiff’s claims for reimbursement for the non-massage services rendered by an LMT based on Florida Statutes § 627.736(1)(a)5. The denial of the claims did not occur until more than 30 days after Defendant was provided notice of the claims.
4. On January 25, 2019, this Court granted, in part, Plaintiff’s Motion for Summary Judgment seeking a declaration that Plaintiff holds a valid license as a health care clinic from AHCA and is entitled to receive PIP benefits. The Court at that time did not issue a ruling as to whether any of the specific services at issue in this matter were compensable under the PIP statute.
5. The issues2 now presented to the Court are (1) whether Defendant’s failure to pay or deny the claims within 30 days amounts to acquiescence to the claim; and (2) whether the services provided by Plaintiff via an employee holding a massage therapy license are compensable and subject to reimbursement under PIP despite the limitations set forth in § 627.736(1)(a)5.
I. FAILURE TO PAY OR DENY THE CLAIMS WITHIN 30 DAYS
6. Plaintiff’s Amended Motion for Summary Judgment asserts that Defendant violated §§ 627.736(4)(b) & (4)(i) by failing to either pay or deny the submitted claims within 30 days, or, at most, within 90 days with the addition of the investigative period under subsection (4)(i).
7. Section 627.736(4)(b) provides: “Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.” Subsection (4)(d) goes on to indicate that overdue payments are subject to bearing interest, that interest is calculated from the date the insurer was furnished notice of the loss, and that the interest is due when “payment of the overdue claim is made.”
8. The Court finds that failure to pay or deny a claim within 30 days under § 627.736(4)(b), or even the investigation period under 627.736(4)(i), does not result in acquiescence to the submitted claims or elimination of the right to contest the claim. Rather, subsections (4)(b) and (4)(d) provide the penalty for failure to pay a valid claim within 30 days, which is accrual of interest on the overdue payment. See United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a] (indicating that § 627.736 provides specific penalties for “overdue” payment and noting that “[n]othing in the statute provides that once a payment becomes overdue the insurer is forever barred from contesting the claim”); Progressive Express Ins. Co. v. Francisco M. Gomez, M.D., P.A., 13 Fla. L. Weekly Supp. 558a (Fla. 13th Cir. Ct. (appellate) Feb. 23, 2006).
II. COMPENSABILITY OF SERVICES RENDERED BY AN LMT
9. Whether or not the services provided by Plaintiff via an employee holding a massage therapy license are compensable and subject to reimbursement under PIP despite the limitations set forth in § 627.736(1)(a)5 has been the subject of debate in county courts, with several courts reaching varying well-reasoned conclusions. Compare North Miami Therapy Center, Inc. (a/a/o Jacques Lumas) v. GEICO General Ins. Co., 26 Fla. L. Weekly Supp. 238b (Fla. Broward Cty. Ct. April 4, 2018); Therapeutic Rehab Center (a/a/o Marisol Martinez) v. GEICO Indemnity Co., 27 Fla. L. Weekly Supp. 76a (Fla. Miami-Dade Cty. Ct. Dec. 3, 2015); with Sunshine Rehab & Medical Inc. (a/a/o Rafael Sanchez) v. Progressive American Ins. Co., 25 Fla. L. Weekly Supp. 549a (Fla. Miami-Dade Cty. Ct. July 10, 2017). This Court concurs with those cases that have found that a health care clinic may be reimbursed for non-massage services provided by an LMT employee.
Applicable Statutory Provisions
10. Florida Statutes § 627.736(1)(a)(2015) discusses medical benefits under PIP, specifically indicating services that are subject to reimbursement and limitations on that reimbursement.
11. Florida Statute § 627.736(1)(a)1 provides that initial services and care that are supervised, ordered, or prescribed by a physician licensed under chapter 458 are reimbursable. Moreover, § 627.736(1)(a)2 provides that, upon the referral of and under the supervision of such a physician, follow up services and care may be permitted. In short, § 627.736(1)(a) identifies the services that may be permitted as medical benefits under PIP.
12. Section 627.736(1)(a)2 then specifically addresses the persons or entities that may provide qualifying follow-up services and care, which include:
e. A health care clinic licensed under part X of chapter 400 which is accredited by an accrediting organization whose standards incorporate comparable regulations required by this state . . . 3
13. Next, Florida Statutes § 627.736(1)(a)5 excludes certain services from the definition of medical benefits and limits reimbursement by providing:
Medical benefits do not include massage as defined in s. 480.033 or acupuncture as defined in s. 457.102, regardless of the person, entity, or licensee providing massage or acupuncture, and a licensed massage therapist or licensed acupuncturist may not be reimbursed for medical benefits under this section.
(emphasis added).
14. Thus, subsection (1)(a)5 provides two limitations on reimbursement of medical benefits under PIP. It is not disputed in this matter that subsection (1)(a)5 eliminates massage services from being included in compensable medical benefits under PIP. Rather, what the parties disagree on is the interpretation of the second limitation.
Statutory Analysis
15. Defendant argues that the treatment for which Plaintiff seeks reimbursement is not compensable under PIP because it was rendered by an LMT and § 627.736(1)(a)5 excludes such services from reimbursement.
16. In turn, Plaintiff argues that the services rendered are not massage services and Plaintiff, the entity seeking reimbursement in this matter, is not an LMT, and therefore reimbursement for the services at issue is not prohibited by Florida Statutes § 627.736(1)(a)5.
17. The task before the Court is to interpret § 627.736(1)(a) in manner that renders all of its provisions meaningful and gives effect to all statutory provisions. Hawkins v. Ford Motor Co., 748 So. 2d 993 (Fla. 1999) [24 Fla. L. Weekly S480a]; Bennett v. St. Vincent’s Medical Center, Inc., 71 So. 3d 828 (Fla. 2011) [36 Fla. L. Weekly S366a].
18. Applying this framework, the Court finds that the plain language of § 627.736(1)(a)2.e. allows a healthcare clinic licensed under part X of chapter 400 (like Plaintiff in this case) to provide and obtain reimbursement for non-massage services, while § 627.736(1)(a)5 prohibits reimbursement to LMTs and licensed acupuncturists. The plain language, however, does not prohibit reimbursement to a licensed healthcare clinic providing services rendered by an employee that is an LMT or licensed acupuncturist, so long as the services are not massage or acupuncture.
19. Stated differently, § 627.736(1)(a)(5) simply identifies who may obtain reimbursement for medical benefits and makes clear that massage and acupuncture do not qualify as medical benefits. It makes no distinction as to the discipline of the individual actually providing the otherwise compensable services and does not eliminate an LMT’s ability to provide non-massage follow-up care under the supervision of a physician, but instead addresses only who may obtain reimbursement. Section 627.726(1)(a)5 turns on the status of the person or corporation seeking reimbursement, not the license of the specific individual that provided the underlying services.
20. This interpretation gives effect to § 627.736(1)(a)5’s prohibitions while also giving effect to the remainder of § 627.736(1)(a), in particular subsection (1)(a)2.e., which allows a health care clinic to be reimbursed for medical benefits. Defendant’s proffered interpretation would eliminate the ability of any licensed health care clinic to obtain reimbursement for non-massage services if it is owned by an LMT or for any non-massage services provided by an LMT employed by the health care clinic. Section 627.736(1)(a)2.e. contains no such exclusions and plainly provides that a health care clinic may be reimbursed for follow up services.
21. Defendant cites to legislative history to argue that the legislature meant to prohibit reimbursement for any services provided by an LMT. However:
when a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Instead, the statute’s plain and ordinary meaning must control . . .
Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017) [42 Fla. L. Weekly S322a] (citing Paul v. State, 129 So. 3d 1058, 1064 (Fla. 2013) [38 Fla. L. Weekly S228a].
22. While it could have been the intention of the Legislature to not only prohibit reimbursement for massage services under PIP, but to also prohibit PIP reimbursement for any services rendered by a licensed massage therapist or licensed acupuncturist, that is not what the plain language of the statute dictates. The Legislature easily could have stated that any services rendered by a licensed massage therapist or licensed acupuncturist are not considered medical benefits under PIP or that any services rendered by an LMT would not be subject to reimbursement, but that is not what the plain language of the statute states.
23. Rather, the language of the subsection (1)(a)5 relates to whether a licensed massage therapist or licensed acupuncturist can be reimbursed for medical benefits.
Application
24. In this case, Plaintiff — the entity seeking reimbursement for medical benefits under the PIP statute — is a licensed health care clinic with valid licensing and is not a licensed massage therapist or licensed acupuncturist. Therefore, Plaintiff is an entity that may provide follow-up services and care under § 627.736(1)(a)2.e.,4 and those services may qualify for medical benefits reimbursement under the plain language of § 627.736(1)(a)2.
25. Moreover, the Court notes that, as a limited liability company, Plaintiff is a legal entity distinct from the individuals that comprise it. § 605.0108(1), Fla. Stat. (indicating that “[a] limited liability company is an entity distinct from its members”). As such, whether Plaintiff’s members include LMTs has no bearing on Plaintiff’s status as a separate legal entity or Plaintiff’s status as a licensed health care clinic entitled to obtain reimbursement under the PIP statute when the proper licensing requirements have been met. In order to apply Defendant’s position, this Court would have to disregard the Plaintiff’s corporate status and, instead, look to the license of the individual employees that comprise it. This Court is not inclined to do so.Conclusion
26. This Court concludes that the services provided by Plaintiff in this matter are compensable and subject to reimbursement under PIP, despite the services being rendered by an LMT. Plaintiff is not an LMT seeking reimbursement for benefits in this matter and is therefore not prohibited by § 627.736(1)(a)5 from being reimbursed. Rather, Plaintiff is a licensed health care clinic permitted to provide follow-up services and care under § 627.736(1)(a)2 and is entitled to reimbursement for the compensable services rendered.
27. This ruling is as to the non-massage services rendered by an LMT for which Plaintiff seeks reimbursement in this matter and disposes of Defendant’s Affirmative Defenses5 on that basis. However, the issue of medical necessity of the services rendered, a showing Plaintiff is required to make in proving its case, was not addressed by the parties relevant to this Motion. The issue is contested in Defendant’s Answer. As such, to the extent Plaintiff’s Amended Motion for Summary Judgment seeks final summary judgment in this matter, it is denied.
Based on the foregoing, it is ORDERED and ADJUDGED:
1. Plaintiff’s Amended Motion for Summary Judgment relative to the failure to pay or deny claims within 30 days is hereby DENIED;
2. In accordance with the above findings, Plaintiff’s Amended Motion for Summary Judgment relative to the compensability of the non-massage services rendered by an LMT for which Plaintiff seeks reimbursement is hereby GRANTED in part;
3. The Court finds that the issue of the medical necessity of the services rendered has not been addressed and does not issue ruling on same.
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1The Patient Account Leger attached as a part of Exhibit 5 to Plaintiff’s Amended Complaint specifies the exact billing codes at issue in this action, none of which are codes for massage services.
2At the hearing, the parties agreed that the initial exam by Dr. Silva on December 20, 2016 is compensable; as such, the Court does not address that issue.
3As discussed above, Plaintiff meets this criteria and also has a physician medical director.
4It is undisputed that a physician provided an initial exam.
5This its ruling also appears to dispose of Defendant’s defective demand letter affirmative defense, which is based upon the demand letter requirement not being satisfied because it claimed benefits for services rendered by an LMT.
