10 Fla. L. Weekly Supp. 744a
Insurance — Personal injury protection — Claim for magnetic resonance imaging services by plaintiff which performed neither the technical nor the professional component of MRI — Fee-splitting — Plaintiff’s payment of radiologist to interpret MRIs on per-interpretation basis is not fee-splitting where radiologist’s compensation is not dependant on whether plaintiff receives payment for its services and is not fixed percentage or any type of commission on monies received by plaintiff — Patient-brokering — There was no patient-brokering arrangement as plaintiff is permitted by statute to pay radiologist for professional consultation services — Plaintiff which receives MRI films from MRI lab, transports films to interpreting radiologist, provides radiologist with letterhead onto which report is placed, and transports report back to lab for distribution does not provide any medical service for which it is eligible to receive payment under PIP statute
RADIOLOGY B. & SERVICES, INC., (Maxceau Francois), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 02-00962-49. July 7, 2003. Kathleen D. Ireland, Judge. Counsel: Steven Lander, Lander & Hall, Fort Lauderdale, for Plaintiff. Jonathan G. Liss, Bernstein & Chackman, Hollywood, for Defendant.
[Subsequent order at 11 Fla. L. Weekly Supp. 1031b.]
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on Monday, June 16, 2003, on Defendant’s Motion For Summary Judgment. The Court, having considered the Motion, 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:
1. On August 30, 2001, Maxceau Francois (“Patient” or “Mr. Francois”) was involved in an automobile accident.
2. At the time of the accident, the Patient was insured by the Defendant, Progressive Express Insurance Company (“Progressive”).
3. In the course of the Patient’s treatment, he underwent the technical component of a MRI of the lumbar spine on November 9, 2001 at the facility of a nonparty, FLORIDA MRI.
4. The professional component was performed by Dr. Roberto Rivera (“Dr. Rivera”) who was hired by Radiology B and Services, Inc. (Radiology B) to interpret Mr. Francois’ MRI. Deposition of Kent Bernarduci at page 28, lines 8-10.
5. Radiology B paid Dr. Rivera for the interpretation of Mr. Francois’ MRI on a 1099 basis. Deposition of Kent Bernarduci at page 54 lines 23-25 and page 42 lines 1-11.
6. Radiology B pays Dr. Rivera a flat rate for each interpretation he performs which ranges from $50.00 for the interpretation of a basic, non-contrasted MRI to $100.00 for the interpretation of an MRI with contrast agents. Deposition of Kent Bernarduci at page 55 lines 10-25 and page 56 lines 1-12.
7. Radiology B pays Dr. Rivera each month without regard to whether Radiology B has received payment for its services. Deposition of Kent Bernarduci at page 56 lines 19-25 and page 57 lines 1-15.
8. Radiology B timely submitted a Health Care Finance Administration Form 1500 to Progressive requesting payment for the services rendered to Mr. Francois. Deposition of Kent Bernarduci at page 84, lines 10-25 and page 84, lines 1-5.
9. Thereafter, Progressive issued an “Explanation of Benefits” refusing to pay the bill submitted by Radiology B based upon Progressive’s assertion that Dr. Rivera must submit the bill.
10. Radiology B filed suit to recover PIP benefits for the MRI services provided.
Based upon the foregoing undisputed facts, the Court concludes as follows:
Progressive’s Motion For Summary Judgment presents three questions for the Court’s determination. First, does the relationship between Radiology B and Dr. Rivera result in “fee-splitting” prohibited pursuant to Fla. Stat. §817.505? Second, does the relationship between Radiology B and Dr. Rivera result in “patient-brokering” prohibited pursuant to Fla. Stat. §458.331? Third, does Radiology B perform necessary medical services and is Radiology B a legally recognized medical “provider” eligible for no-fault benefits.
I. The Relationship Between Radiology B And Dr. Rivera Is Not Fee-Splitting Under Florida Law.
Health care providers are prohibited from participating in what is commonly referred to as “fee-splitting.” In Practice Management Assoc., Inc. v. Orman, 614 So. 2d 1135, 1137 (Fla. 2d DCA 1993), the court recognized the definition of “fee splitting” as the “. . .dividing of a professional fee for specialist’s medical services with the recommending physician.”
The manner in which Dr. Rivera was compensated by Radiology B for the interpretation of Mr. Francois’ MRI is not the dividing of a professional fee. Dr. Rivera was paid by Radiology B to interpret Mr. Francois’ MRI. The compensation paid to Dr. Rivera is not dependent on whether Radiology B receives payment for the services and it is not a fixed percentage, or any type of commission on moneys received by Radiology B. Thus, the payment from Radiology B to Dr. Rivera represents compensation for professional services rendered.
The Court has already concluded that an MRI facility may hire a Radiologist to perform MRI interpretations and compensate that Radiologist on a per interpretation basis without that arrangement being deemed an illegal fee-splitting arrangement. See, Prosper Diagnostic Center, Inc. v. Progressive Southeastern Insurance Co., In The County Court For The Seventeenth Judicial District In And For Broward County, Florida, Case No. 02-7850 COCE (49) (Kathleen D. Ireland, J.) (Order Denying Defendant’s Second Amended Motion For Summary Judgment, dated April 11, 2003) (where MRI facility paid Radiologist $75.00 to interpret the MRI and thereafter billed the insurance carrier globally for both the interpretation and technical component of the MRI, the facility and Radiologist were not engaged in fee-splitting).
The reader must note the difference in the facts between PROSPER and the case at issue. In PROSPER, the radiologist was hired to read film taken by the entity that had performed the technical component of the services rendered. In the instant case, the physician was employed by a third party who had no part in the performance of either the technical or the professional component of the services rendered.
This difference does not effect the courts opinion as to the appropriateness of Dr. Rivera receiving payment for his professional consultation services as an independent agent. There exists no prohibited fee-splitting arrangement between Radiology B and Dr. Rivera. Accordingly, Progressive’s Motion For Summary Judgment is DENIED to the extent that it asserts that the bill submitted by Radiology B is non-compensable based upon Progressive’s assertion that the relationship between Radiology B and Dr. Rivera is a prohibited fee-splitting arrangement.
II. Radiology B and Dr. Rivera Are Not Engaged In Patient-Brokering
Section 817.505, et seq., Florida Statutes, which codifies the prohibition on patient-brokering, permits persons, health care providers, and health care facilities to pay a fee to obtain professional consultation services. See, Fla. Stat. §817.505(3)(c) (2001) (statutory prohibition on fee splitting shall not apply to payments for professional consultation services). Thus, Radiology B is expressly permitted by Fla. Stat. §817.505(3)(c) to pay Dr. Rivera for his professional consultation services.
The Court finds that there existed no patient-brokering arrangement between Radiology B and Dr. Rivera as defined pursuant to Fla. Stat. 817.505. Progressive’s Motion For Summary Judgment is therefore DENIED to the extent that it asserts that the bill submitted by Radiology B is non-compensable based upon Progressive’s assertion that the relationship between Radiology B and Dr. Rivera is a patient-brokering arrangement prohibited pursuant to Fla. Stat. 817.505.
III. Radiology B Is Not A Legally Recognized Medical Provider Performing Necessary Medical Services To A Person Eligible For No Fault Benefits.
To be eligible for payment for medical services pursuant to Fla. Stat. §627.736, Radiology B must be “lawfully rendering treatment to a person for bodily injury covered by personal injury protection insurance. . .”
Radiology B receives the films from Florida MRI and transports them to the office of the interpreting radiologist, provides that physician with their letter head stationary onto which the transcriber places the radiologist report. The report and film are retrieved by Radiologist B and taken to Florida MRI and the report is distributed.
The Court takes note of Plaintiff’s distinguishing the cases relied upon by Defendant as being superseded by statute and the definition of broker according to Fla. Stat. §627.730(1).
However, whether or not the Plaintiffs are brokers is not the issue here but rather do they provide any medical services. The undisputed record confirms that Radiology B did not provide any “medical service” that could raise to valid billing under Fla. Stat. §627.736. The services rendered were provided exclusively by Dr. Rivera, MD, a board certified radiologists, who has his own practice. Therefore, only Dr. Rivera himself could validly bill for such services.
Accordingly, Progressive’s Motion For Summary Judgment is GRANTED to the extent that it asserts Radiology B is not legally eligible to receive payment pursuant to Fla. Stat. §627.736.
Accordingly, it is
ORDERED AND ADJUDGED as follows:
1. That Defendant’s Motion For Summary Judgment is DENIED to the extent that it asserts fee-splitting which is prohibited under Florida law.
2. That Defendant’s Motion for Summary Judgment is DENIED to the extent that it asserts prohibited patient-brokering.
3. That Defendant’s Motion for Summary Judgment is hereby GRANTED to the extent that it asserts Radiology B & Services, Inc. is not legally eligible to receive payment pursuant to Fla. Stat. §627.736.
4. That plaintiff, Radiology B & Services, Inc., shall take nothing by this action and Defendant, Progressive Express Insurance Company shall go hence without day. The Court reserves jurisdiction to tax attorney’s fees and costs, if appropriate, upon proper motion and showing.
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