Investigating PIP Fraud Through the Appropriate and Effective Use of (6)(b) Requests

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September 17, 2015

brbBy Bart R. Valdes, Esq.

According to the language in the No-Fault Statute, an insurer is required to pay a bill within 30 days of receiving the bill in order to avoid incurring a penalty, interest, or attorneys’ fees.  This presents a very tight window within which an insurer can investigate a claim where fraud may be involved. Section 627.736(6)(b), Florida Statutes, provides an insurer with the option to request additional information or documents from a medical provider to toll the time when a bill is due so that it can properly evaluate and investigate the claim, and to make a decision on whether to pay those bills.  Section 627.736(6)(b), Florida Statutes, states as follows:

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.

This provision is meant to assist the insurer in making a decision about whether to pay the bills at issue. [1]  If the request is sent within 30 days of receiving the bill from the provider (or 35 days where the bill is received by mail), then the time for paying the bills is tolled until 10 days after the insurer receives a complete response from the provider.[2]  This provides the insurer with additional time to investigate suspected provider fraud and to make a claims decision on the bills.

In submitting the back-up documentation for their bills, providers occasionally fail to submit sufficient information for the insurer to evaluate whether the treatment that was allegedly rendered was properly rendered, by whom the treatment was rendered, and whether the treatment was lawful, reasonable, related to the subject claim, and medically necessary as required by Florida law.  Where the insurer requires additional information to process the subject bills, using a (6)(b) request to obtain this information and documents directly from the provider can be a valuable and effective tool in the claims process.  The insurer is entitled to request, and any the provider must furnish, the following information and documents:

[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 . . . 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.

If a provider wholly fails to respond to the request for information, then the bills never become due.  “The fact that the plaintiff made no response leaves the defendant insurer with no option other than to consider the matter tolled.”[3]  Since the bills never become overdue, any suit filed against the insurer on those unpaid bills is premature.

Also, one judge in Palm Beach County ruled on this issue, and stated that:

[t]he purpose of the recent amendments to the PIP statute which standardized the submission of PIP claims was to reduce ambiguity as to what treatments were rendered to the patient, and to make it easier for insurers to understand exactly for what medical compensation was being sought. . . .Under the law, a carrier is entitled to determine exactly what records were – and were not – provided in response to its demand for information so that it can, at the very least, evaluate the adequacy of the records and then make an informed business decision as to whether to pay a claim based on information it has . . . .

Id. Under this language, an argument can be made that a partial (6)(b) response that omits certain information or documents (and which are pertinent to the insurer’s ability to make a decision on the bills) is not a complete response, and may be treated as a failure to respond for purposes of tolling the time to pay the bills.

The Second District Court of Appeals has addressed specific issues where discovery under subsection (6)(b) is proper.[4]  In this case, the insurer sought information on leases entered into by the provider, and the court found that “if [the insurer] is precluded from obtaining the discovery sought, it will not be able to determine whether the charges and services are reasonable and necessary.  [The insurer] should be entitled to discover the amount [the provider] charged… for the services performed for its insured.”[5]

Recent case law in Florida reflects that an action on unpaid bills for medical services is premature where the provider has failed to respond to a request for information under
§ 627.736(6)(b), Florida Statutes (a “(6)(b) request”).  Specifically, the Miami-Dade County Court granted summary judgment in favor of the insurer, finding that the action by the provider for PIP benefits was premature since the provider failed to respond to the insurer’s timely (6)(b) request.[6]  In another case, the same court entered summary judgment in the insurer’s favor, also finding that the bills at issue were not overdue since the provider failed to respond to the insurer’s requests for information and documents that were contained in its explanations of benefits.[7]  A provider also cannot “respond” to a (6)(b) request in its pre-suit demand letter, and § 627.736(6)(b), Florida Statutes, requires a provider to respond to the request directly.

Further, the case law in Florida supports the position that a demand letter is premature where it demands amounts that are not yet overdue.[8]  Under this line of cases, if an insurer timely requests information under subsection (6)(b) of the Florida No-Fault Law, no demand letter can be sent until more than 10 days after the provider provides a response and the insurer subsequently fails to pay the bills.  When bills are not yet overdue, any demand letter is not timely, and any resulting action for benefits is premature and improper.

The (6)(b) request is a tool that the Florida Legislature has made available for insurers to investigate, and attempt to combat, suspected fraud in the context of a PIP claim.  When used properly, it is a valuable tool to gather information relating to fraudulent claims, and to defend against suits filed by persons attempting to prematurely

[1] Wellington Chiropractic Center of Palm Beach, Inc. v. Nationwide Mut. Ins. Co., 11 Fla. L. Weekly. Supp. 929b (Fla. 15th Cir. Ct. 2004)

[2] Central Florida Medical & Chiropractic Center, Inc. v. State Farm Mut. Auto. Ins. Co., Order Denying Plaintiff’s Motion for Summary Judgment, Case Number 2013-31537 COCI (Fla. Cty. Ct. June 9, 2014).

[3] Best Line Medical Center, Inc. v. State Farm Fire & Cas. Co., 18 Fla. L. Weekly Supp. 1198a (Fla. 13th Cir. Ct. 2011).

[4] MRI Services, Inc. v. State Farm Mut. Auto. Ins. Co., 807 So. 2d 783, 785 (Fla. 2d DCA 2002).

[5] See also Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000); State Farm Mut. Auto. Ins. Co. v. Goldstein, 798 So. 2d 807 (Fla. 4th DCA 2001).

[6] Hialeah Medical Corp. a/a/o Sunrise Mora v. Mercury Ins. Co. of Fla., 16 Fla. L. Weekly Supp. 958a (Fla. Miami-Dade Cty. Ct. 2009).

[7] Professional Medical Group, Inc. a/a/o Jurden J. Ugalde v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 1000b (Fla. Miami-Dade Cty. Ct. 2006)

[8] Medical Therapies, LLC v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 34a (Fla. 9th Cir. Ct. 2014); Best Line Medical Center, 19 Fla. L. Weekly Supp. 1198a.

 

To read more on PIP fraud see Investigating PIP Fraud Through the Use of EUOs and Preserving the EUO Defense in PIP Cases.

 

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