10 Fla. L. Weekly Supp. 1040a
Insurance — Personal injury protection — Claim for magnetic resonance imaging services by plaintiff which performed technical component of MRI and paid radiologist to perform professional component of MRI — Fee-splitting — Plaintiff and radiologist who did not have a business relationship with plaintiff and was paid by plaintiff on a per interpretation basis are not fee-splitting — Notice of loss — Insurer which has not established a modifier for technical components has made it impossible for technical component to be billed separately, and plaintiff provided legal timely notice of loss with claim form for both technical and professional components of MRI
OAKLAND PARK OPEN MRI, INC. (Elizabeth Biscardi), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02 005416 (49). September 25, 2003. Kathleen D. Ireland, Judge. Counsel: Charles J. Kane, Kane & Kane, Boca Raton. Caroline N. Budnick, Fort Lauderdale.Summary Final Judgment for Plaintiff
On September 10, 2003, the Court heard argument on Plaintiff’s Motion for Summary Final Judgment. The Plaintiff timely filed the affidavits of the patient’s treating physician and the Plaintiff’s billing manager that establish the Plaintiff’s prima facie case. The deposition of the Defendant was taken November 5, 2002 and was timely filed with Court.
The questions presented were:
(1) Does the failure of a provider of technical services and the provider of the professional services to report the technical and professional components separately result in an appropriate denial of payment?
(2) Is the relationship between a health care facility and health care provider illegal as “fee splitting” if there is not a business relationship between the referring physician and/or the facility and the interpreting radiologist and the relationship between the facility and the radiologist is not conditioned on a referral basis, but of a per interpretation reading?
UNDISPUTED FACTS
Plaintiff (“OAKLAND PARK”) based upon a valid irrevocable assignment of benefits from Defendant’s (“PROGRESSIVE’s”) insured submitted a request for payment to PROGRESSIVE on a HCFA 1500 form with a statement of charges. The form was timely received by PROGRESSIVE on December 10, 2001.
The statement used the correct CPT code 73721 for an MRI of the left knee image billed at $1130.26, the total allowable amount pursuant to Florida Statute 627.736(5)(b)5.
On December 14, 2001 PROGRESSIVE disallowed the HCFA claim form demanding a re-bill saying “Since you are only performing the technical service (TC) please re-bill under the correct code and modifer.” OAKLAND PARK never resubmitted that claim.
OAKLAND PARK paid Bruce A. Rodan, M.D., a board certified radiologist to interpret each MRI. OAKLAND PARK created the MRI, prepared the film and forwarded it to Dr. Rodan for his interpretation. The record does not demonstrate the amount Dr. Rodan was paid but the Plaintiff conceded that it was an amount less than twice the Medicare Part B amount established for the professional component. The Defendant conceded that the Plaintiff is not a “broker” as defined for purposes of the Florida No-Fault law.
The Amended Answer and Affirmative Defenses allege no patient referral between the Plaintiff and Dr. Rodan. At the hearing the Defendant conceded that the procedure used was the electronic transmittal of images by OAKLAND PARK to Dr. Rodan who interprets the images and renders his report. The Plaintiff conceded and Defendant did not dispute that Dr. Rodan is paid only on a services rendered basis and without regard to referral.
CONCLUSIONS
1. Oakland Park Open MRI, Inc. and Dr. Bruce A. Rodan are not “fee splitting” as recognized in Practice Management Associates, Inc. v. Orman, 614 So.2d 1135 (Fla. DCA 1993) where it was defined as a “dividing of a professional fee (emphasis provided) for specialist medical services with the recommending physician” but rather are making payment for professional services rendered.
2. Fla. Stat. §627(5)(c) requires the statement of charges must be furnished to the insurer by the provider and here there are indeed two separate providers, one of professional services and one of technical services, which might lead one to want for two separate billings. But the statute must be read as a whole and F.S. 627.736(5)(e) mandates “All billing shall, to the extent applicable, follow the Physicians Current Procedural Terminology CPT for the year in which services were rendered.”
3. Reading these two provisions together creates impossibility when third party payers have not established a modifier for technical billings. The Second Edition Principles of CPT Coding, published by the American Medical Association for the year 2001 has no billing code for the technical component and for reasons states: “the CPT nomenclature does not contain a coding convention to designate the technical component for a procedure or service. . . because it is designed for physicians. However, to make possible separate billings many third party payers have established modifiers and/or specific reporting policies for reporting the technical component. . . reporting and reimbursement policies vary among insurance companies.” The Second Edition Principles of CPT Coding instructs providers of the technical components to familiarize themselves with these various policies.
There being no substantial competent evidence that PROGRESSIVE has established any specific reporting policies for separate billing of technical components, and none being made known in the notice of denial, the Court finds that PROGRESSIVE has made it impossible for technical components services to be billed separately. Acknowledging that the law cannot be read in a manner that creates an absurdity, the Court finds therefore that OAKLAND PARK had provided legal timely notice of the loss. There being no affidavits or other proof by PROGRESSIVE to show a genuine material question of fact, Plaintiff is entitled to and hereby is granted Summary Final Judgment in the principal sum of $904.21 plus prejudgment interest from December 10, 2001 plus entitlement to reasonable attorneys fees and costs. The Court reserves jurisdiction to award interest, attorneys fees and costs.
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