11 Fla. L. Weekly Supp. 439a
Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — It is not unlawful for provider/assignee providing technical component of magnetic resonance imaging to contract with radiologist as independent contractor to provide professional component of MRI and to globally bill insurer for both technical and professional components — Statute prohibiting kickbacks and split fee arrangements does not prohibit payment of independent contractor to provide professional component, and recent legislation provides evidence that hiring independent contractor as interpreting radiologist and global billing are approved
AXCESS MRI as assignee of JAMES WYCHE, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-03-CC-5637-XXXX. Division D. March 18, 2004. Russell L. Healey, Judge. Counsel: Mark R. Schultz, Fort Myers. Vincent P. Gallahger, Jacksonville.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court upon the Defendant’s Motion for Summary Judgment, regarding Plaintiff billing globally for MRI services.
FACTS
The facts of the case, which are not in dispute, are as follows:
James Wyche (Wyche) was involved in a motor vehicle accident on October 4, 2002. Nationwide Mutual Fire Insurance Company (Defendant), provided Personal Injury Protection (PIP) benefits to Wyche. Dr. Mark Emas, a Jacksonville neurologist, ordered an MRI to be performed at Axcess MRI in Jacksonville. Axcess performed the MRI and timely billed Defendant for the procedure. Defendant refused to pay the entire medical invoice, claiming Axccess did not perform the professional component and only paid for the technical component. A lawsuit was filed seeking PIP benefits and attorney fees for the unpaid professional component of the aforementioned service.
The medical necessity of the MRI is not at issue, rather Defendant avers that Axcess did not “render” the professional component, in that Axcess contracted with a radiologist, who was not Axcess employee, to perform the professional component. Both parties agree that the interpreting radiologist was an independent contractor who signed a contract with Axcess to perform the professional component, i.e. the MRI interpretation.
ANALYSIS
In evaluating this controversy, this Court is keenly aware of the Florida Supreme Court commandment regarding PIP litigation: The purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so tat the injured insured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Company, 774 So.2d 679 (Fla. 2000).
This is an issue of first impression for Duval County, though several of our sister courts throughout the state have reached opposite conclusions as is typical in PIP genre.
In Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Company, 9th Judicial Circuit in and for Orange County, Florida, Case CIO-00-6161 (March 12, 2001) [8 Fla. L. Weekly Supp. 361a], the MRI professional component was performed by an independent contractor and this arrangement was determined to be valid. The case was appealed however, because it involved a fee splitting scheme between Premier MRI and Medical Management Group, (MMGO.).
MMGO appealed to the 5th DCA who issued an opinion in Medical Management Group of Orlando, Inc. vs. State Farm Mutual Automobile Insurance Company, 811 So. 2d 705, (5th DCA 2002). The 5th DCA affirmed the Orange County court and found that MMGO was involved in fee splitting. The court found that MMGO had performed the billing and the referral and that neither of these actions qualified as compensable under PIP as medically necessary. The court, however, made a finding that Premier, “performed the MRI. . .” Page 706. Neither the County Court, nor the 5th DCA, found that Premier violated any statutes by billing the professional component which was in fact rendered by an independent contractor.
In the instant case, Axcess MRI transmitted the MRI images via the internet to Miami, where a radiologist who had executed a contract specifying his duties and compensation to Axcess, performed the read and issued the report. The agreement called for the radiologist to be paid regardless of any compensation paid to Axcess.
A different Orange County court reached a contrary decision in Regional MRI of Orlando vs. Nationwide Mutual Fire Insurance Company, Orange County Court, Case SCO-02-5818, (September, 2003) [10 Fla. L. Weekly Supp. 1020c]. In that case, the patient presented to Regional MRI of Orlando, (MRI) for diagnostic imaging of the spine. MRI performed the technical component, on equipment, either owned or leased by MRI. MRI sent the films to Dr. Henry Floyd (Floyd) an independent contractor to perform the professional component for the diagnostic testing and Nationwide refused to pay for the professional component. It was not disputed that Floyd was an independent contractor hired by MRI. Floyd was paid $75.00 per read and was furnished an IRS 1099 form at the end of each year.
The court determined that F.S. §627.736(5)(a) requires a provider to “lawfully render” a medical service in order to be entitled to remuneration for that service. The court determined that to “render” meant to “perform” the medical service which excluded hiring another parry or independent contractor to perform the task. Since MRI hired an independent contractor to perform the professional component, the court held that MRI could not collect the PIP benefits for the professional component.
The Defendant in the instant case argues that the MRI provider did not “render” the professional component, but only the technical component of the service. “Rendering treatment” is not defined within the statute. In the aforementioned case the court admits same, but then goes on to discuss Webster’s definition of “renders” and states:
Webster defines “render” as “1. 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” that supports Progressive’s assertation that Plaintiff did not “render” MRI services within the meaning of F.S. 627.736(5)(a) because Dr. Rivera, (the interpreting doctor) was paid on a 1099 basis.
It seems this issue turns on whether or not the professional component is rendered by an employee of the MRI provider versus an independent contractor. This court finds that the two are indistinguishable. The independent contractor is given a 1099 for tax purposes. The total amount billed is the same, regardless of the status of the person who provides the professional component and it seems to the court that global billing in this instance is more economical swift and makes more sense, rather than requiring the filing of two forms, one filed by the entity providing the technical component and one filed by the person or entity providing the professional component.
Further, F.S. §817.505 does not make it unlawful for Axcess MRI to pay an independent contractor to provide a professional component.
A review of the Florida Statutes does not provide the court any indication that the legislature intended to forbid MRI companies from contracting with independent radiologist to provide the professional component. In fact, recently passed PIP legislation which took effect on October 1, 2003, provides ample evidence that the hiring of an independent contractor as the interpreting radiologist is approved. The court takes judicial notice of the PIP legislation which was raised during the 2003 session and became law during 2003. The recent changes were meant to further insure that fraud would not be a part of the PIP benefits enjoyed by Floridians.
Florida Statute §400.901 was created to provide clear regulation and guidance for the registration of clinics which handled PIP patients. The bill is called the “Health Care Clinic Act”. The new act requires that the
“. . .a publication shall contain information that includes, but need not be limited to, information pertaining to the name, residence and business address, phone number, social security number, and the license number of the medical or clinic director, of the licensed medical providers employed or under contract with the clinic.”
The plain meaning of the new language clearly manifests that the legislature presumed to know and allow that some medical providers would be “employees” and some would be “under contract”, as is the case with Axcess MRI. The new statute makes no delineation between employees or contract employees.
The legislature went further and required that:
Each clinic engaged in magnetic resonance imaging services must be accredited by the Joint Commission on Accreditation of Healthcare Organizations, the American College of Radiology, or the Accreditation Association for Ambulatory Health Care, within 1 year after licensure. However a clinic may request a single 6 month extension if it provides evidence the agency establishing that for good cause shown, such clinic can not be accredited within 1 year after licensure, and that such accreditation will be completed within the 6 month extension. After obtaining accreditation as required by this subsection, each such clinic must maintain accreditation as a condition of renewal of its license.
Had the legislature intended to prohibit MRI facilities from employing independent contractors to perform the professional component, that statement could have easily been added to the addition which was inserted in May, 2003.
The legislature had another opportunity to prohibit the use of independent contractors to perform the radiology interpretation which it amended Section 7 of Florida Statute 627.7321 and added paragraph 14 which states
(14) “Upcoding” means an action that submits a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed. The term does not include an otherwise lawful bill by a magnetic resonance imaging facility, which globally combines both technical and professional components, if the amount of the global bill is not more than the components if billed separately; however, payment of such a bill constitutes payment in full for all components of such service.
Once again, the legislature was aware of the common practice in the MRI industry to global bill for both components. In the instant case, the amount billed globally is a combination of the technical and professional component and does not exceed more than the components added together.
The Court therefore concludes that it is not unlawful for an MRI facility to hire independent contractors to perform the professional component and to globally bill for both technical and professional components to a PIP carrier. Therefore, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby DENIED.
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