10 Fla. L. Weekly Supp. 935a
Insurance — Personal injury protection — Fee-splitting — Medical provider’s payment of radiologist as 1099 employee to interpret insured’s MRI does not violate section 817.505 prohibition against fee-splitting where insurer has not asserted that any of the parties fall within categories of providers to which statute is applicable — Further, fee-splitting statute is applicable only where compensation is paid to induce the referral of patients or in return for referring patients, and insurer has not asserted that radiologist has been compensated in exchange for referring insured — Even if statute were applicable to medical provider, statute authorizes payment to health care provider or other health care facility for professional consultation services — Medical provider’s decision to pay radiologist to interpret MRI does not violate section 458.331 prohibition against physicians paying or receiving compensation for referral of patients to health care providers where insurer has not asserted that radiologist was compensated in exchange for referral, and statute expressly permits medical facilities to pay fee for professional consultation services — Coverage — Medical providers — Plaintiff medical provider is entitled to receive PIP benefits regardless of whether it is provider that actually rendered MRI services where insured’s benefits were validly assigned to plaintiff — Moreover, nothing in statute or definition of word “render” supports insurer’s assertion that plaintiff did not render MRI services at issue — Partial summary judgment entered in favor of medical provider
RADIOLOGY B & SERVICES, INC., (Gina Mulligan), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-014779 COCE (54). September 15, 2003. Lisa G. Trachman, Judge. Counsel: Steven Lander and Joseph K. Hall, Lander & Hall, Fort Lauderdale. Chad Christensen.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on Friday, August 29, 2003, on Defendant’s Motion For Summary Judgment. The Court, having considered the Motion, Plaintiff’s Cross Motion For Summary Judgment And Response In Opposition To Defendant’s Motion For Summary Judgment, the pertinent portions of the record, the arguments of counsel and being otherwise duly advised in the premises, finds that the following material facts are not disputed:Undisputed Facts
1. On May 6, 2002, Gina Mulligan (“Ms. Mulligan”) was injured in an automobile accident. Progressive’s Motion For Summary Judgment at ¶1.
2. At the time of the accident, Ms. Mulligan was insured by Progressive under an automobile insurance policy which provides Personal Injury Protection Benefits. Progressive’s Motion For Summary Judgment at ¶1.
3. Ms. Mulligan was referred to the plaintiff for an MRI of the lumbar spine by Dr. Michael Mathesie (“Dr. Mathesie”). Progressive’s Motion For Summary Judgment at Exhibit C, at Box 17.
4. On June 13, 2002, Ms. Mulligan underwent the MRI that had been requested by doctor. Progressive’s Motion For Summary Judgment at ¶2.
5. Plaintiff accepted a valid assignment of the insurance benefits available to Ms. Mulligan so that Plaintiff could bill Progressive directly for the MRI services rendered to Ms. Mulligan. Amended Complaint at Exhibit A.
6. Dr. Roberto Rivera, M.D. (“Dr. Rivera”), a board-certified radiologist, performed the professional interpretation of Ms. Mulligan’s MRI as a 1099 employee of the Plaintiff. Progressive’s Motion For Summary Judgment at ¶2 and ¶8.
7. Dr. Rivera has been paid by Plaintiff for his services. Progressive’s Motion For Summary Judgment at ¶9.
8. Plaintiff timely submitted a Health Care Finance Administration Form 1500 to Progressive requesting payment for MRI services rendered to Ms. Mulligan (the “Bill”). Progressive’s Motion For Summary Judgment at ¶4 and Exhibit C.
9. Progressive has refused to pay the Bill. Progressive’s Motion For Summary Judgment at ¶4.
10. Plaintiff filed suit to recover the PIP benefits available to pay the Bill. Progressive’s Motion seeks final summary judgment with respect to each of its affirmative defenses. Based upon the foregoing undisputed facts, the Court concludes as follows:Plaintiff’s First Affirmative Defense
For its first affirmative defense, Progressive has asserted that “plaintiff is engaged in fee-splitting in violation of Florida Statutes Sections 817.505 and 458.331.” Amended Answer at ¶5. Although Progressive’s first affirmative defense contains no factual allegations, its Motion For Summary Judgment makes it clear that Progressive contends that the manner in which Dr. Rivera is employed by Plaintiff violates Fla. Stat. §817.505 and §458.331.
I. Fla. Stat. §817.505
Section 817.505(1) makes it a crime for “any person, including any health care provider or health care facility” to:
(a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage from a health care provider or health care facility;
(b) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to a health care provider or health care facility; or
(c) Aid, abet, advise, or otherwise participate in the conduct prohibited under paragraph (a) or paragraph (b).
Id. Nothing in the record indicates that Plaintiff violated Fla. Stat. §817.505. Section §817.505(2)(a) limits the application of the statute to the following categories of providers:
(i) any person or entity licensed, certified, or registered with the Agency for Health Care Administration;
(ii) any person or entity who has contracted with the Agency for Health Care Administration follows: providers or facilities that have contracted with the U.S. Agency for Health Care Administration to provide goods or services to Medicaid recipients as provided under Fla. Stat. §409.907;
(iii) a county health department established under part I of chapter 154;
(iv) community service providers who have contracted with the Florida Department of Children and Family Services to furnish alcohol, drug abuse, or mental health service licensed under part IV of chapter 394;
(v) substance abuse service providers licensed under chapter 397; or
(vi) federally supported primary care program such as a migrant or community health care center authorized under ss 329 and 330 of the United States Public Health Services Act.
Progressive has not asserted that any of the parties involved falls within any of the categories of providers identified in subsection (2)(a). Accordingly, Section 817.505 is not applicable.
Further, Fla. Stat. §817.505 only applies where compensation is paid by one party “to induce the referring of patients” or “in return for referring patients.” Ms. Mulligan was referred to the Plaintiff by her physician, Dr. Mathesie. Progressive has not asserted that Dr. Mathesie has been compensated in exchange for referring Ms. Mulligan to Plaintiff.
Even if Section 817.505 was applicable to Plaintiff’s business, subsection 3(c) clearly authorizes “payments to a health care provider or health care facility for professional consultation services.”
The Court therefore concludes that Plaintiff’s decision to pay Dr. Rivera to perform the interpretation on a 1099 basis does not constitute a violation of Fla. Stat. §817.505.
II. Fla. Stat. §458.331
Section 458.331 provides, in pertinent part, as follows:
Grounds for disciplinary action; action by the board and department
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(i) Paying or receiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent a physician from receiving a fee for professional consultation services.
Id. Section 458.331 prohibits physicians from paying or receiving compensation for the referral of patients to providers of health care services. Progressive has not asserted that Dr. Mathesie has been compensated by the Plaintiff in exchange for the referral of Ms. Mulligan.
Further, Section 458.331 expressly permits medical facilities to pay a fee to obtain professional consultation services. Fla. Stat.§458.331(1)(i).
The Court therefore concludes that Plaintiff’s decision to pay Dr. Rivera to perform the interpretation on a 1099 basis does not violate Fla. Stat. §458.331.Defendant’s Second And Third Affirmative Defenses.
Progressive’s second and third affirmative defenses assert that the Plaintiff is not eligible to receive payment of PIP benefits because: (i) Plaintiff is not the provider of the MRI services; and (ii) Plaintiff is not the physician, hospital, clinic that rendered the MRI services. Amended Answer at ¶6-7.
Although Progressive’s second and third affirmative defenses contain no factual allegations, Progressive’s Motion For Summary Judgment makes its clear that Progressive asserts that Plaintiff is not eligible to receive payment of PIP benefits pursuant to Fla. Stat. §627.736(5)(a) because Plaintiff paid Dr. Rivera on a 1099 basis.
I. Plaintiff Is Eligible To Receive PIP Benefits Regardless Of Whether It Is The Medical Provider That Rendered The MRI Services.
Section §627.736(5)(a) does not require that the entity that submitting a claim for a medical service be the provider of the service to eligible to receive payment of PIP benefits. A corporation who is not a physician, hospital, clinic or other person lawfully rendering treatment to an insured person as set forth in Fla. Stat. § 627.736(5)(a), is eligible to receive payment of PIP benefits for services provided by a health care provider so long as the insured has validly assigned his or her benefits to the corporation seeking payment. Professional Consulting Services, Inc. v Hartford Life And Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003).
The benefits available to Ms. Mulligan were validly assigned to the Plaintiff so that Plaintiff could bill Progressive for the MRI services at issue. Accordingly, Plaintiff “stands in the shoes” of Ms. Mulligan and has the same rights and status as she would with respect to the claim for the MRI services. Because Ms. Mulligan would, in the absence of the assignment, be entitled to demand payment from Progressive for the MRI services at issue, Plaintiff is entitled to demand payment from Progressive irrespective of whether it is deemed the provider that rendered the MRI services at issue.
II. Plaintiff Rendered The MRI Services At Issue.
Even if Section 627.736(5)(a) is construed to require that Plaintiff be the provider that rendered the MRI services at issue to be eligible to receive payment of PIP benefits, nothing contained in the statute supports Progressive’s assertion that Plaintiff did not render the MRI services at issue because Dr. Rivera was paid on a 1099 basis. Section 627.736(5)(a) provides:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) Any physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the invoice, bill, or claim form approved by the Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies in cases involving no insurance.
Id. (emphasis added).
The phrase “rendering treatment” is not defined within the statute. It must therefore be interpreted according to its usual and customary meaning. Hankey v. Yarian, 755 So.2d 93, 96 (Fla. 2001) (“statutes must be given their plain and obvious meaning, and courts should assume that the legislature knew the plain and ordinary meaning of the words when it chose to include them in the statute”).
Webster’s defines “render” as “l. to cause to be or become; make; 2. to do; perform; 3. to furnish; provide.” There is nothing in the definition of the word “render” supports Progressive’s assertion that Plaintiff did not “render” the MRI services within the meaning of Fla. Stat. §627.736(5)(a) because Dr. Rivera was paid on a 1099 basis.
When construing a statute “inference and implication cannot be substituted for clear expression.” Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362, 364 (Fla. 1977). Courts are not permitted read requirements into a statute which have not been expressly imposed by the legislature. Streeter v. Sullivan, 509 So.2d 268, 271 (Fla.1987) (“We are not inclined to read such a requirement into the statute when it is plainly not there.”); Sugarmill Woods Oaks Village Association, Inc. v. Wires, 766 So.2d 487, 489-490 (Fla. 5th DCA 2000) (“Appellant argues that we should read into the statute ‘liens’ as part of the concept of covenants and restrictions. . .that broader interpretation goes beyond the language used and chosen by the legislature. . . .” citing Holly v. Auld, 450 So.2d 217 (Fla.1984)); Palm Beach County Board of County Commissioners v. Robertson, 500 So.2d 180 (Fla. 1st DCA 1986) (“ ‘when the language of a statute is clear, courts may not look beyond the plain meaning of that language’ and ‘given the unambiguous language of [the statute], it would be inappropriate for us to read into [it] more obstacles for claimants than the provision demands’ ” quoting Daniel v. Holmes Lumber Co., 490 So.2d 1252 (Fla. 1986)).
Where the legislature intends to prohibit certain conduct under the PIP statute, it does so clearly and expressly. See e.g., Fla. Stat. §627.732(1) (2001) (prohibiting “brokering” of medical equipment for purposes of Fla. Stat. §§627.730-627.7405). See also, Professional Consulting Services, Inc., v. Hartford Life And Accident Ins., Co., 849 So.2d 446 (Fla. 2d DCA 2003) (“If the legislature had intended to prohibit after-loss assignments to parties who were not medical providers, the statute would have said as much”).
It is the long-standing policy of Florida courts to construe the PIP statute liberally and in favor of the insured. Palma v. State Farm Fire and Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986). The PIP statute should be construed in order to give effect to the legislative purpose of providing a broader and more liberal standard of coverage. GEICO v. Novak, 453 So.2d 1116 (Fla. 1984).
This Court therefore concludes that Plaintiff rendered MRI services at issue within the plain meaning of Fla. Stat. §627.736(5)(a).Medical Management and Physician’s Charter Are NotApplicable To The Case At Bar.
Medical Management Group of Orlando, Inc. v. State Farm Mut. Auto. Ins. Co., 811 So. 2.d 705 (Fla. 5th DCA 2002) and Federated National Ins. Co. v. Physician’s Charter Services, Inc., 788 So.2d 403 (Fla. 3d DCA. 2001) are not applicable to the case at bar.
Medical Management and Physician’s Charter each involve brokering of the technical component of MRI scans which were performed prior to the enactment of the 2001 amendments to Fla. Stat. §627.736. In adopting the 2001 amendment, the legislature clarified what is prohibited in connection with the rendering of MRI services. That prohibition is limited to services which involve the leasing of time for the “use of medical equipment” which is not 100-percent owned or leased by the claimant. Fla. Stat. §627.732(1) (2001).
The MRI services at issue in the instant case were rendered on June 13, 2002. Accordingly, 2001 PIP statute applicable law. Further, the MRl services at issue in this case do not involve compensation for the lease or use of medical equipment.
Based upon the foregoing, the Court concludes that Medical Management and Physician’s Charter, supra, are distinguishable and that Professional Consulting Services, Inc. v. Hartford Life And Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003) is controlling.This Court Has The Authority To Grant SummaryJudgment In Favor Of Plaintiff.
At the hearing on Progressive’s Motion For Summary Judgment, counsel for Progressive objected to the Court’s consideration of Plaintiff’s Cross Motion For Summary Judgment and the Affidavit of Kent Bernarduci which were both served two days prior to the hearing. That objection was overruled.
It is within the Court’s power, when a motion for summary judgment is made, to enter summary judgment against the moving party and in favor of the non-moving party even where the non-moving party has not sought summary judgment in its favor by service and filing of a cross-motion. Opler v. Wynne, 402 So.2d 1309, 1311 (n.1) (Fla. 3d DCA 1981) (“summary judgment may be entered for a non-moving party where the other party moves for summary judgment and the record discloses the non-moving party is entitled to summary judgment”) citing Carpineta v. Shields, 70 So.2d 573 (Fla. 1954); See also, King v. L&L Investors, Inc., 133 So.2d 744 (Fla. 3d DCA 1961) cert. denied 142 So.2d 93 (Fla. 1962).
The record in this case establishes that Plaintiff was not engaged in a prohibited fee-splitting or patient-brokering arrangement relative to the MRI services at issue. The record further establishes that Plaintiff lawfully rendered the MRI services. Accordingly, the Court has authority to enter partial summary judgment in favor of the Plaintiff. It is therefore
ORDERED AND ADJUDGED that Defendant’s Motion For Summary Judgment is DENIED in its entirety. Further, the Court finds that record establishes that Plaintiff is entitled to partial summary judgment in its favor determining as follows:
(I) Plaintiff did not violate Fla. Stat. §817.505 or §458.331 with respect to the services at issue;
(II) Progressive’s second and third affirmative defenses do not assert a valid defense to Plaintiff’s claim as Plaintiff is eligible to receive payment of PIP benefits based upon the valid assignment of the benefits available from Progressive to Ms. Mulligan pursuant to Professional Consulting Services, Inc. v. Hartford Life And Accident Ins., Co., 849 So.2d 446 (Fla. 2d DCA 2003); and
(III) Plaintiff is the “provider” which lawfully rendered the MRI services at issue within the plain meaning of Fla. Stat. 627.736(5)(a).
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