11 Fla. L. Weekly Supp. 242a
Insurance — Personal injury protection — Magnetic resonance imaging — Medical provider claiming entitlement to reimbursement for MRI pursuant to “limiting charge” of Medicare Part B fee schedule — Phrase “allowable amount under Medicare Part B” as used in section 627.736(5)(b)5 to cap amounts that may be charged to PIP insurers and insureds for MRIs refers only to Medicare’s “participating fee schedule,” not to “limiting charge” amount which is surcharge borne by Medicare patients who opt to use services of non-participating providers and submit claims on unassigned basis — PIP insurer properly reimbursed provider/assignee for MRI pursuant to Medicare Part B participating fee schedule — Summary judgment granted in favor of insurer — Question certified
ADVANCED DIAGNOSTIC TESTING, INC. A/A/O WILL TURCIOS, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-4740 SP 05 (3). October 10, 2003. Caryn Canner Schwartz, Judge. Counsel: Robert J. Cooney, Cooney and Associates, P.A., Miami, for Plaintiff. Frank S. Goldstein, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Defendant.
AFFIRMED. 29 Fla. L. Weekly D2342c
FINAL SUMMARY JUDGMENT AND ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARYJUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This Cause came before the Court on Defendant’s and Plaintiff’s Motions for Summary Judgment. Subsequently, but before signing the Judge’s proposed Order and Final Summary Judgment (draft copies of which were sent to Plaintiff’s and Defendant’s attorneys), the Court scheduled a hearing on August 5, 2003, regarding the Court’s said proposed Order and Final Judgment. On July 30, 2003, Plaintiff’s attorney, Mr. Cooney, called the Judge’s Calendar Clerk to schedule a Motion for Rehearing on the Court’s proposed Order/Final Judgment to be heard on the same date as the Court’s hearing (i.e. August 5, 2003). The Court agreed to permit argument on Plaintiff’s Motion for Rehearing and on Plaintiff’s Motion For Sanctions Against Defendant For Fraud on the Court. The Court DENIED Plaintiff’s said Motion for Sanctions. After spending hours too numerous to count, considering all arguments of counsel, reviewing all of the Motions, Responses, Memoranda and Exhibits or Attachments filed or provided to the Court and after reviewing all applicable Florida law, and all other applicable law provided to this Court, the Court GRANTS Plaintiff’s Motion for Rehearing since the Court permitted Plaintiff to argue said Motion and informed Plaintiff of this, GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. This Court finds as a matter of law that the phrase “allowable amount under Medicare Part B” as used in Fla. Stat. Section 627.736(5)(b)5 refers to Medicare’s Participating Fee Schedule. The Court reaches this conclusion based upon the reasons set forth below.
FACTS
1. This action involves Plaintiff’s claim against Defendant, Allstate Insurance Company, (hereinafter referred to as “Allstate”) for personal injury protection (PIP) benefits specifically relating to a diagnostic MRI (magnetic resonance imaging) performed on Will Turcios in connection with an automobile accident.
2. Plaintiff, a South Florida Medical provider, located in locality Zone 4, of medicare’s geographic precincts, makes a claim for PIP benefits and asserts standing to pursue this claim through an assignment of benefits. Defendant agrees that Mr. Will Turcios was eligible to receive PIP benefits under an automobile policy issued by Allstate.
3. After the accident, Allstate’s insured, Will Turcios, underwent an MRI performed at the Plaintiff on August 23, 2001. The Plaintiff submitted a healthcare finance administration form (hereinafter referred to as “HCFA”), to Allstate evidencing a charge for an MRI, CPT Code 72148. Upon receipt of Plaintiff’s HCFA, Allstate, pursuant to F.S. 627.736(5)(b)5 timely issued payment to the Plaintiff. In determining the amount to be paid to Plaintiff, Allstate applied their interpretation of the newly enacted MRI fee schedule which was codified in Senate Bill 1092 and further memorialized in Florida Statute 627.736(5)(b)5 (2001). The amount paid by Allstate was pursuant to the “participating fee schedule”, as set forth in the Medicare Part B Fee Schedule. The Plaintiff takes the position that the Defendant failed to pay according to the “limiting charge” fee schedule under Medicare Part B, which Plaintiff believes is required by statute, resulting in PIP benefits being due. Both parties agreed that the “Non-participating fee schedule” does not apply in this case.
4. Florida Statute 627.736(5)(b)5, enacted on June 19, 2001, states in pertinent part, as follows:
Effective upon this act becoming a law and before November 1, 2001, (emphasis applied), allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200% of the allowable amount under Medicare Part B for the year 2001, for the area in which treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for the year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida. [Emphasis supplied].
5. In its Report On Insurance Fraud Related To Personal Injury Protection, case number 95,746 (Second Interim Report of Fifteenth Statewide Grand Jury) (the “Grand Jury Report”), the Statewide Grand Jury requested the Legislature to set up an MRI fee schedule and to put same in place immediately, to curb MRI billing abuses. Section 1 (Legislative Findings) of Senate Bill No. 1092 (Chapter 2001-271) adopted and incorporated in this Section by reference as findings the entirety of the Grand Jury Report.ISSUE
This case raises an issue of statutory construction that can be decided as a matter of law. The sole issue for determination in this cause is whether the phrase “allowable amount under Medicare Part B” as used in Fla. Stat. Section 627.736(5)(b)5 refers to Medicare’s “participating fee schedule” or Medicare’s “limiting charge” amount.
ANALYSIS
I. FLORIDA’S PIP STATUTE
F.S. 627.736, which is entitled “Required Personal Injury Protection Benefits; Exclusions; Priority; Claims,” was amended in 2001, and F.S. 627.736(5)(b)5 (the provision at issue in this litigation) was added to the 2001 version.
F.S. 627.736(5), entitled “Charges for Treatment of Injured Persons” contained multiple subsections, including (5)(a), (5)(b)1, (5)(b)2, (5)(b)3, (5)(b)4, (5)(b)5, (5)(c), (5)(d) and (5)(e). It is Section (5)(b)5 that established the statutorily allowable amount for MRIs. Specifically, Florida Statute 627.736(5)(b)5, in pertinent part, states as follows:
(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 access of the amount the person or institution customarily charges for like services or supplies in cases involving no insurance.
(b)5. Effective upon this act becoming a law and before November 1, 2001 (emphasis added), allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.
II. MEDICARE’S THREE FEES AND OTHER MEDICA REPUBLICATIONS AND DEFINITIONS AS THEY RELATE TO FLORIDA PIP LAW
1. In order for the provider to collect PIP benefits directly from the insurer, an assignment of rights from the patient/insured to the provider is necessary. Plaintiff obtained such an assignment and obtained payment directly from Allstate.
2. Plaintiff takes the position that F.S. 627.736(5)(b) can’t possibly be interpreted to mean that each claim must be reviewed on a case by case basis with an analysis of Federal Medicare Law to determine which of the three payment categories (discussed below) applied to that claim. Yet Plaintiff’s states in his Memorandum and Argument in Support of Plaintiff’s Motion For Rehearing, that an analysis under the medicare federal regulations is necessary to determine which fee schedule must be paid.
3. The Medicare Part B 2001 Locality Fee Schedule Report includes three different columns entitled “participating fee schedule”, “non-participating fee schedule”, and “limiting charge”. It is of paramount importance to note that the fee schedule report does not list the “limiting charge” as a fee schedule. Florida Statute 627.736(5)(b)5 does not indicate that the Plaintiff and/or any MRI provider is allowed to charge the maximum amount under Medicare Part B. Specifically, Florida Statute 627.736(5)(b)5 states that the charges shall not exceed a specified percentage of the “allowable amount under Medicare Part B”.
4. According to the Medicare Definitions and Explanations provided by the Medicare program in its Glossary (hereinafter referred to as the “Glossary”). Medicare Part B benefits help pay for medically necessary physician services, including surgical services, and also covers related medical services and supplies, medically necessary outpatient hospital services, x-rays and laboratory tests. [The Glossary provides definition of most medicare terms used in this Order/Final Judgment.] Medicare’s system for paying physicians is based on a fee schedule. The fee schedule assigns a dollar value to each physician service based on work, the cost of running a practice and the cost of malpractice insurance. The fees that appear on the schedule are the Medicare approved amounts for services covered by Part B. Under the Part B payment system, each time an individual treats with a physician for a covered service, the amount Medicare will recognize for that service will be the lesser of the physicians actual charge or the fee schedule amount. Medicare specifically approves an individual amount, or “approved amount”, to be reimbursed to physicians for each individual covered service.
5. There are specifically two types of providers, physicians and suppliers, which Medicare Part B recognizes. The two distinct classifications include participating and non-participating providers, physicians and suppliers. In order to be deemed a participating provider under Medicare Part B, a provider, physician and/or supplier agrees to sign a Medicare Participating Agreement that requires them to accept “assignments” on all Medicare claims. These physicians and suppliers are called participating physicians and suppliers and their names and addresses are listed in the Medicare Participating Physicians and Suppliers Directory. Those providers are entitled to reimbursement at the participating fee schedule rate as set forth on the Medicare Part B 2001 Locality Fee Schedule which constitutes the “maximum Medicare Part B reimbursement”, or the “approved amount”. These providers cannot invoice the patient for any differential between the provider’s full charge for the service and the amount paid by Medicare (other than the uninsured co-pay and deductible amounts).
6. Those providers, physicians and suppliers who only accept assignment on a case by case basis and/or not at all are deemed to be and/or are classified as “non-participating”. As non-participating providers, physicians, and/or suppliers, these entities are entitled to Medicare Part B reimbursement, dependent upon whether their claims were submitted on an “assigned” and/or “unassigned” basis. When a provider, physician and/or supplier submits a claim on an assigned basis, it means that the provider, physician and/or supplier has agreed to accept the Medicare approved amount as payment in full (They agree not to invoice the patient for any additional compensation, other than uninsured co-pay and deductible amounts). However, if the specific provider, physician and/or supplier is not a participating provider, it is entitled to the non-participating fee schedule. The non-participating fee schedule as set forth in the Medicare Part B 2001 Locality Fee Schedule is 95% of Medicare’s approved amount as set forth on the participating fee schedule. The non-participating fee schedule will always be 5% less than the approved amount of the participating fee schedule under Medicare Part B.
7. This leads to the specific issue involved in this litigation. The Plaintiff claims it is entitled to reimbursement pursuant to the “limiting charge”. By definition, those providers, physicians and/or suppliers that are non-participating and who do not accept assignment of a Medicare claim can charge more than physicians who do, and there is a limit to the amount they can charge for services covered by Medicare. They are permitted to charge the beneficiary and/or the insured only 15% more than the “Medicare approved amount” and the beneficiary and/or insured is responsible for the extra amount. This is called the “limiting charge”. The limiting charges found on the third column of the 2001 Locality Fee Schedule Report illustrate that the limiting charge is a surcharge to the beneficiary and/or insured of up to 15% more than the “Medicare approved amount”. It must be noted that the limiting charge is not deemed to be a “fee schedule” pursuant to the Medicare Part B 2001 Locality Fee Schedule for Physicians and Nonphysicians which includes, among other provisions, a section on How to Read the 2001 Locality Fee Schedule (referred to herein as the “Medicare Part B 2001 Locality Fee Schedule” “Medicare Part B 2001 Locality Fee Schedule Report” or other shortened versions of same).
8. In addition, if a patient gives the initial medical provider an assignment, all subsequent medical providers are assignees, unless the patient consents in writing that the subsequent providers need not be. Fla. Stat. Section 456.056.
III. APPLICATION OF THE LIMITED SCHEDULE IS INCONSISTENT WITH PIP
1. Florida courts are required to interpret ambiguous statutes in the most logical and sensible manner and cannot utilize an interpretation that leads to an unreasonable or ridiculous conclusion. See Fla. Dept. of Business and Prof. Reg. v. Investment Corp. of Palm Beach, 747 So. 2d 374 (Fla. 1999). It would be unreasonable to incorporate Medicare’s “limited” schedule into the PIP statute. The PIP statute requires an assignment in order for the provider to receive payment directly from the PIP insurer. The execution of such an assignment precludes the provider from receiving the higher limited rate. 42 U.S.C. Section 1395w-4(g)(2). Medicare’s participating fee schedule is expressly premised on the existence of such an assignment; whereas, Medicare’s limited fee schedule is expressly premised on the absence of such an assignment.
2. Plaintiff essentially argues that the legislature intended to apply Medicare’s “limiting charge” (which is not available to providers who have received an assignment of benefits) to the PIP regime (in which virtually all providers obtain assignments of benefits). In making this argument, Plaintiff attempts to show that assignments for PIP are different than assignments for Medicare, because Medicare assignments are “assignments to Medicare.” An assignment, whether under Medicare or under PIP, is an assignment to the provider, not to the insurer or Medicare. In both cases, after receiving an assignment, the medical provider has the right to receive payment directly from the payer of medical benefits. A review of Plaintiff’s own assignment in this case indicates that it applies to “any third party payer.”
3. It is of utmost importance to this analysis that the limiting charge, which is up to 15% more than the “non-participating fee schedule”, is specifically borne by the patient, not Medicare. In other words, the limiting charge is a surcharge or penalty borne by the Medicare insured who opts to use the services of a non-participating provider who submits the claim on an unassigned basis. Medicare will reimburse one amount, with the rest, including the limiting charge, being paid by the Medicare insured.
4. An example used by Medicare on how to apply the 2001 Locality Fee Schedule Report is instructive to the analysis of this issue. The illustration below used by Medicare in its Health Care Financing Administration publication entitled “Payment of Doctor Bills by Medicare” (located at www.ec-online.net) (hereinafter referred to “Explanation of Payment of Doctor Bills by Medicare”) provides an explanation regarding payment of doctor bills:
If you went to a participating physician for a service which the fee schedule was $100, the physician would accept that amount in full. Medicare would pay $80 and you would be responsible for $20, assuming you have already met the Part B $100 annual deductible. (It should be noted that Medicare reimbursement is identical to PIP on an 80% basis. For purposes of this analysis, the 80% reimbursement by Medicare and/or the $100 deductible are not at issue.)
For the same service furnished by a non-participating physician, the fee schedule amount would be $95. (Non-participating physicians are reimbursed at 95% of the fee schedule amount for participating physicians.) Medicare would pay $76, or 80%, leaving you with a balance of $19 to cover the remaining 20% of the fee schedule amount. However, since non-participating physicians who do not accept assignment can legally charge 15% more than the fee schedule amount, another $14.25 could be added to the bill to bring your out-of-pocket costs to $33.25, assuming you have already met the Part B deductible. You would not have to pay any charges over $33.25.
[Emphasis supplied].
5. The significance of Medicare Part B’s explanation is that “you” or the patient/insured, not Medicare, is responsible for the “limiting charge”. The fatal flaw in Plaintiff’s reasoning is that it attempts to interchange the obligation of the Medicare insured with that of the Florida PIP insured. However, while the Medicare Part B statute in its explanation clearly identified a Medicare insured as the party who assumes the burden of the limiting charge, nowhere in Florida’s PIP Statute nor its legislative history, as will be discussed in more detail below, reflect any corresponding obligation on the part of the PIP insured to be responsible for the limiting charge. In fact, Florida Statute 627.736(5)(b)5 specifically states “allowable amounts that may be charged to a personal injury protection insurance insurer and insured”.
IV. STATUTORY CONSTRUCTION; LEGISLATIVE INTENT
1. The Supreme Court of Florida has ruled that it is a fundamental rule of statutory construction that the Legislative intent is the polestar by which the Court must be guided if Florida Statute 627.736(5)(b)5 is ambiguous. State v. Webb, 398 So.2d 820, 824 (Fla. 1981).
Florida Courts are compelled by well-established norms of statutory construction to choose that interpretation of statutes and rules which renders their provisions meaningful. Statutory interpretations that render statutory provisions superfluous are and should be disfavored. Courts must assume that statutory provisions are intended to have some useful purpose. Courts are not to presume that a given statute employs “useless language”. Johnson v. Feder, 485 So.2d 409 (Fla. 1986). Where possible, the court must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1980). All parts of an act should be read together in an effort to achieve a consistent whole. Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla. 4th DCA 1969). Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts. Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983).
As previous discussed, the Florida Supreme Court in Fla. Dept. of Business and Professional Regulations, cited above, held that Florida Courts are required to interpret ambiguous statutes in the most logical and sensible manner and cannot utilize an interpretation that leads to an unreasonable or ridiculous conclusion. Statutes should be construed to give each word effect. Gretz v. Florida Unemployment Appeals Commission, 572 So.2d 1384 (Fla. 1991).
2. The Statewide Grand Jury recognized the rampant and pervasive abuse of MRI testing and more specifically, the charges submitted to insurers for reimbursement of MRIs. The Statewide Grand Jury stated, “Because there is no fee schedule set by the government in PIP claims, and because of strict rules governing PIP claims, as discussed below, insurance companies must pay almost any amount billed.” Given this particular attention by the Statewide Grand Jury to the MRI charging abuse, it is illogical that the legislature’s intent was to allow for providers to place an even higher financial burden upon insureds by allowing them to bill for the “limiting charge”, which would only serve to increase each individual insured’s “co-pay” and/or out-of-pocket expenses.
3. Pursuant to Florida Senate Bill SB1092e1, the Legislature enumerated its findings and basis for the amendments to Florida’s PIP Statute as follows:
Section 1 “Legislative Findings”. The Legislature finds that the Florida Motor Vehicle No-Fault Law is intended to deliver medically necessary and appropriate medical care quickly and without regard to fault, and without undue litigation or other associated costs. The Legislature further finds that this intent has been frustrated at significant cost and harm to consumers by, among other things, fraud, medically inappropriate over-utilization of treatments and diagnostic services, inflated charges, and other practices on the part of a small number of health care providers and unregulated health care clinics, entrepreneurs and attorneys. The Legislature further finds insurance fraud related to Personal Injury Protection takes many forms, including, but not limited to, illegal solicitation of accident victims; brokering patients among doctors, lawyers and diagnostic facilities; unnecessary medical treatments of accident victims billed to insurers by clinics; billing of insurers by clinics for services not rendered; the intentional overuse or misuse of legitimate diagnostic tests; inflated charges for diagnostic tests or procedures arranged through brokers; and filing fraudulent no-fault law tort lawsuits”. The Legislature further declares the problem addressed in the Grand Jury Report and in this Act and matters connected therewith are matters of great public interest and importance to public health, safety, and welfare, and that the specific provisions of this act are the least-restrictive reasonable means by which to solve these problems.
[Emphasis supplied].
4. The Legislature, in S.B. 1092 Section 1 adopted and incorporated by reference as findings, the entirety of the Grand Jury Report. A clear reading of the Legislative intent in the 2001 Amendments to Florida’s PIP Statute, including 627.36(5)(b)5, reflects that Subsection (5)(b)5 was specifically created to limit fraudulently inflated prices by MRI medical providers, not to add an increased burden on the insured/patient. In this suit, the Plaintiff has attempted to submit to Allstate for reimbursement the limiting charge listed on column 3 of the Medicare Part B 2001 Locality Fee Schedule Report. If this Court allowed the Plaintiff to charge the limiting charge as opposed to the enumerated fee schedules, it would fly in the face of the specific Legislative intent of the 2001 Amendments to Florida’s PIP Statute, including Section 627.736(5)(b)5. The 2001 Florida Legislature’s intent in amending Section (5)(b)5 of Florida’s PIP Statute, which inserts limitations to the amount an MRI provider may charge the insured/patient, was to “limit insurance fraud related to personal injury protection, including inflated charges for diagnostic tests or procedures arranged through brokers”. A review of the Legislative History of the 2001 PIP Statute amendments reflect that the Florida Legislature did not intend to add an additional burden on the insured/patient, but rather to “limit” the inflated charges for diagnostic tests or procedures by limiting the total amount that the MRI medical provider could charge for its services.
5. If the Court accepted Plaintiff’s interpretation of Section (5)(b)5, it would deem that the 2001 Florida Legislature’s intent in amending this section was to allow the MRI provider to charge the patient the maximum rate allowable or the “limiting charge.” Not only is Plaintiff’s interpretation of Section (5)(b)5 contrary to the 2001 Florida Legislature’s intent, but it flies directly in the face of the Legislature’ s clearly enunciated purpose in amending Florida’s PIP Statute, i.e., to place a cap on, at best, the unreasonable charges that were being made by MRI providers. Application of the limiting charge would be tantamount to re-writing the statutory language of “allowable amount” to mean “maximum allowable amount”. In drafting other provisions of the PIP amendments such as Section (5)(b)2, the legislature specifically used the term “maximum” to describe the reimbursement allowance amount permitted, but did not use the word “maximum” in drafting Section (5)(b)5. The Court, in the case of In re Order of Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1137, took the position that “courts should not add additional words to a statute not placed there by the legislature”. Where a Statute contains certain provisions and omits others, the statute is ordinarily to be construed as excluding from its operations all those provisions not expressly mentioned. Special Disability Trust Fund, Department of Labor and Employment Security v. Motor and Compressor Co., 446 So.2d 224, 226-227 (Fla. 1st DCA 1984). The legislature was capable of drafting the phrase to read “maximum allowable amount.” More specifically, Section 5(b)2, which addresses diagnostic procedures other then MRIs, uses the phrase “maximum reimbursement allowance” in the following manner:
Charges for medically necessary cephalic thermograms, peripheral thermograms, spinal ultrasounds, extremity ultrasounds, video fluoroscopy and surface electromyography shall not exceed the maximum reimbursement allowance for such procedures as set forth in the applicable fee schedule or other payment methodology established pursuant to Section 440.13.
Fla. Stat. Section 627.736(5)(b)2 (emphasis supplied).
Construing the Statute to result to payment of the maximum allowable amount, where the legislature expressly used language suggesting otherwise, is completely inconsistent with the legislative intent of reducing the amounts that PIP insurers pay for such services. Florida Statute 627.736(5)(b)5 which only allows the MRI medical providers to charge fees pursuant to the Medicare Part B 2001 Locality Fee Schedule (which may only include participating and non-participating schedules for PIP claims), is consistent with the legislative intent behind the Florida PIP Statutes 2001 Amendments, including Section (5)(b)5.
6. The Legislature specifically employed the definite article “the allowable amount” rather than “a” or“any”allowable amount. The most sensible reading of the phrase “the allowable amount” suggests that the legislature intended for a specific Medicare schedule to be incorporated into the PIP statute, rather than either, any, or all of the schedules. See, State v. Mitchell, 719 So. 2d 1245 (Fla. 1st DCA 1998) (distinguishing between use of articles); State v. Grappin, 427 So.2d 760 (Fla. 2d DA 1983) (same). Using this interpretation of the language, the phrase “the allowable amount” can only mean that the participating rate would apply to this Plaintiff. As previously discussed, the parties stipulated that the non-participating fee schedule does not apply to this case.
7. A significant portion of the basis of Plaintiff’s argument arises from the legislature’s 2003 changes, in which the legislature clarified that the “participating fee schedule” applies to the time period of November 1, 2001 to the present. The Plaintiff attempts to argue that because the 2003 legislature does not insert the words “participating amount” for the time period before November 1, somehow this means that the legislature intended that the “limiting charge” applies for this time period. First, the legislature did not say that the limiting charge applies for this time period. Second, it is more likely that the legislature simply did not see a need to retroactively change the statutory language for a time period that had already ended (the time period “November 1st to the present” is ongoing, and the “participating” language needed to be added to clarify the legislature’s intent for claims going forward). Third, the Defendant paid the provider an amount in accordance with its interpretation of the law at the time payment was made and not in accordance with their prediction of what amendments the Legislature may enact in the future. Fourth, the Plaintiff’s argument leads us back to where we started: whether for the time period June 2001 though November 2001, the phrase “the allowable amount under Medicare Part B” refers to the “participating” amount or the “limiting” amount. Finally, it would make no sense for the legislature to intend that the participating fee schedule applied for all claims since November 1st, 2001, but that for the time period June, 2001 to November, 2001, the limiting charge should somehow apply.
V. RECENT RULING OF MIAMI-DADE CIRCUIT COURT JUDGE
On March 27, 2001, the Honorable Ronald M. Friedman, Circuit Court Judge for the 11th Circuit, Miami-Dade County, Florida, ruled against a similarly situated plaintiff in Millennium Diagnostic Imaging Center, Inc., as assignee of Pedro Perez vs. Security National Insurance Company, Case No. 02-18160 CA(2), on the same issue for the case at bar. See also, Millennium Diagnostic Imaging Center, Inc. a/a/o Egbert Brown vs. Nationwide Assurance Company, 11th Judicial Circuit Case Number 02-18151 CA 20, wherein Judge Ronald Dresnick adopted Judge Friedman’s opinion and Open MRI of Pinellas, Inc. v. Liberty Mutual Insurance Company, 6th Judicial Circuit, Case No. 02-9822 CI-20.
In Millennium, the defendant filed a Motion to Dismiss the lawsuit on the grounds that the plaintiff, Millennium, had failed to state a cause of action because the plaintiff was not entitled to recover the Limiting Charge because it did not apply. In agreeing with the defendant insurance company, the Honorable Ronald M. Friedman stated in the Order Granting Defendant’s Motion to Dismiss:
9. Also attached to Plaintiff’s complaint as Exhibit A is a copy of certain pertinent sections of the Year 2001 Medicare Part B Physician and Non-Physician Practitioner Fee Schedule. Included in the Schedule are instructions on “how to read the 2001 Locality Fee Schedule.” It explains that the locality fee schedule is designed to advise physicians, nonphysician practitioners, and suppliers whose payments are linked to the fee schedule how much Medicare will allow for covered services paid from the physician fee schedule. The locality fee schedule also informs nonparticipants how much they can legally charge when filing an unassigned claim beginning January 1, 2001.
10. The instruction sheet defines the terms Participating Fee Schedule, Nonparticipating Fee Schedule, and Limiting Charge. The definitions reflect that the Limiting Charge is not a Fee Schedule, nor is it an allowable amount under Medicare. Rather, the Limiting Charge is the “limit that can be legally charged on an unassigned claim to Medicare beneficiaries” by providers who are non-participating. The schedule expressly states that “Limiting Charges are not used to determine the payment allowance, but are intended to minimize beneficiary liability on unassigned, claims”.
11. The PIP statute states that MRI providers’ charges shall not exceed 175% of the allowable amount under Medicare Part B. By its very definition, the limiting charge is not a payment allowance. The allowable amount is either the participating fee schedule or the non-participating fee schedule, and the maximum amount that can be charged is 175% of the participating fee schedule, or $1,129.00. Since Defendant paid Plaintiff 175% of the participating fee schedule, Plaintiff has sustained no damages and has failed to state a cause of action.
CONCLUSION
For the reasons set forth above, there is no question of material fact that Plaintiff was properly reimbursed by Allstate for its services rendered to the insured pursuant to the Medicare Part B 2001 participating fee schedule. Accordingly, Defendant’s Motion for Final Summary Judgment is hereby GRANTED and Plaintiff’s Motion for Summary Judgment is hereby DENIED.
CERTIFICATION TO THE THIRD DISTRICT COURT OF APPEAL
The Court notes that there is no controlling precedent, as none have addressed the legal issues presented here and passed on by this Court. Therefore, this Court finds and concludes that the matters presented and ruled upon are of great public importance.
Accordingly, pursuant to Rule 9.040 and Rule 9.160, Florida Rules of Appellate Procedure, the Court hereby certifies the following question to the Third District Court of Appeal as one of great public importance:
Does the phrase “allowable amount under Medicare Part B” as used in Fla. Stat. Section 627.736(5)(b)5 refer only to Medicare’s “participating fee schedule” or does the phrase “allowable amount” instead refer to Medicare’s “limiting charge” amount?
FINAL SUMMARY JUDGMENT FOR DEFENDANT
For the reasons set forth above, FINAL JUDGMENT is hereby entered in favor of Defendant, ALLSTATE INSURANCE COMPANY, and against Plaintiff ADVANCED DIAGNOSTIC TESTING, INC. a/a/o WILL TURCIOS, such that Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction to assess costs and attorneys fees.
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