The Honorable Judge Myriam Lehr (Miami-Dade County – County Court) recently issued an order Granting Plaintiff’s Motion for Summary Judgment on exhaustion of benefits in New Vista Diagnostic Imaging Services v. Direct Gen. Ins. Co. on April 25, 2023. The order addresses two (2) gratuitous payment arguments raised by Plaintiff’s counsel, Demesmin & Dover, who continue to present unique and novel arguments challenging the validity of proper exhaustion of benefits. Here, they challenged the payment of CPT Code L0637. Plaintiff’s counsel asserted that pursuant to Fla. Sta. § 400.93, a Home Medical Equipment license is required to lawfully provide home medical equipment and services in Florida. Accordingly, plaintiff’s counsel argued that the payment of code L037 was a gratuitous payment to the extent the Defendant paid the code without a home medical equipment license. Judge Lehr agreed, and ruled that CPT Code L0637 was not payable under Defendant’s policy of insurance or Fla. Stat 627.736 as this was an invalid claim.
The second challenge dealt with hospital payments. Here, Plaintiff contested the validity of the claims for services rendered by Associated Pathologists on January 27-28, 2020, in relation to CPT Codes 80053, 81003, 84702, 85025, 86850, 86900, and 86901. They argued that Codes 80053, 81003, 84702, 85025, 86850, 86900, and 86901 were not emergency services and care as defined by Fla. Stat. s. 395.002. In support, Plaintiff’s counsel presented deposition testimony of Direct General’s adjuster who admitted that there was no supporting documentation in the claim file to substantiate that these bills were for “emergency services and care,” as defined by Fla. Stat. § 395.002. The court ruled that, as a matter of law, CPT Codes 80053, 81003, 84702, 85025, 86850, 86900, and 86901 were not payable under Defendant’s policy of insurance as these also were invalid claims and the payments deemed gratuitous.
We can expect continued challenges to the validity of exhaustion of benefits. How do Insurers fight back? We utilize the favorable orders on exhaustion at the DCA level. Insurers can also challenge Plaintiffs’ assertions of improper exhaustion through next in line damages, Plaintiffs’ lack of standing to challenge 3rd party provider payments, and whether Plaintiffs’ pleadings allow challenges to exhaustion, especially where there is no allegations of bad faith raised in the pleadings. Each case must be examined on a case-by-case basis.
If you have any questions, please contact Jeff Baer, jbaer@florida-law.com.