11 Fla. L. Weekly Supp. 647c
NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 827a
Insurance — Personal injury protection — Magnetic resonance imaging — Medical provider claiming entitlement to reimbursement for MRI pursuant to “Limiting Charge” of Medicare Part B schedule — “Allowable amount under Medicare Part B” as used in Section 627.736(5)(b)5 refers to Medicare “Limiting Charge” amount, not Medicare’s “Participating Fee Schedule” — In enacting requirement that allowable amount for MRI be adjusted annually by amount equal to nonexistent “medical Consumer Price Index for Florida,” legislature intended that amount be adjusted annually, and insurer is required to make adjustments to allowable amount pursuant to Consumer Price Index, South Region-Urban Consumers under category of Medical Care — Question certified
DIAGNOSTIC REHAB SERVICES o/b/o Robert Haynes, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-SP-2002-975. April 27, 2004. Peyton B. Hyslop, Judge. Counsel: Amy G. Cohen, New Port Richey. Fotini Manolakos, St. Petersburg.
ORDER ON MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on the Plaintiff’s and Defendant’s Motion for Final Summary Judgment and the Court having heard argument of Counsel and being otherwise duly advised in the premises, the Court makes the following findings:
FACTS
1. This action involved Plaintiff’s claim against Defendant, Progressive Express Insurance Company (hereinafter referred to as “Progressive”) for personal injury protection benefits, specifically relating to an MRI (Magnetic Resonance Imaging) performed on Robert Haynes, in connection with an automobile accident.
2. Plaintiff, a central Florida medical provider, located in locality Zone 01/02 of Medicare’s geographic precincts, made a claim for personal injury protection benefits and asserted standing to make said claim through an Assignment of Benefits.
3. Following Mr. Haynes’ automobile accident, Mr. Haynes underwent an MRI at the Plaintiff’s facility on May 20, 2002. The Plaintiff submitted a health care finance administration form (hereinafter referred to as “HCFA”), to Progressive, evidencing a charge for CPT Code 72141, of $1,100.000.
4. Upon receipt of the Plaintiff’s HCFA, Progressive, pursuant to F.S. 627.736(5)(b)5 (2001) issued payment to the Plaintiff.
5. In determining the allowable amount to be paid, Progressive applied its interpretation of the newly enacted Medicare MRI fee schedule.
6. The amount ultimately paid by Progressive was the “Participating Fee Schedule” amount set forth in the Medicare Part B Fee Schedule. The Plaintiff took the position that Progressive failed to pay the “limiting charge” under the Medicare Part B Fee Schedule which Plaintiff believes was required under F.S. 627.736(5)(b)5 (2001). Moreover, Progressive took the position that, although F.S. 627.736(5)(b)5 (2001) stated that the allowable amounts under F.S. 627.736(5)(b)5 (2001) were to be adjusted annually by an additional amount equal to the “medical Consumer Price Index for Florida” no such indices existed and Progressive could not have made and did not make any adjustments based on a nonexistent index.
7. F.S. 627.736(5)(b)5 (2001), in pertinent part states:
Effective upon this act becoming a law. . .allowable amounts that may be charged to a personal injury protection insurance carrier 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. . .adjusted annually be an additional amount equal to the medical Consumer Price Index for Florida. (Emphasis added).
BASED UPON the aforesaid facts and the Court’s review of the Plaintiff’s Motion for Summary Judgment and attachments along with the Defendant’s Motion for Summary Judgment and attachments, the Court finds as follows:
1. The legislature clearly intended the “amount allowed” to be the maximum that any doctor could charge for service rendered as listed in the Medicare Part B Fee Schedule.
2. Had the legislature intended for the amount Medicare actually pays to a particular doctor to set the “amount allowed” the legislature would have indicated the same.
3. A physician who is, (1) not a participating provider and, (2) does not accept an assignment of Medicare B payments is allowed to charge the amount as set forth in the “Limiting Charge” column for the Year 2001 Medicare Part B Physician and Non-Physician Practitioner Fee Schedule.
4. The Court finds that the “amount allowed” is therefore the amount set forth in the “Limiting Charge” column of the Year 2001 Medicare Part B Physician and Non-Physician Practitioner Fee Schedule since it is an amount legally allowed to be charged.
5. The Plaintiff has argued that the Consumer Price Index for the South Region, all urban consumers, under the subcategory “Medicare care”, is the Consumer Price Index that the legislature contemplated when enacting F.S. 627.736(5)(b)5 (2001).
6. The Defendant has provided several opinions wherein the lower Courts find the Consumer Price Index portion of the 2001 statute “in error.” Siegfried K. Holz, M.D., P.A., a/a/o Nade Rosius vs. New Hampshire Indemnity Co., Inc., a foreign Corporation, (County Court, 13th Judicial Circuit, Case No. 03-8282SC, Division L, October 13, 2003) [10 Fla. L. Weekly Supp. 1036c]; Florida Mobile MRI, Inc., a/s/o Javier Collazo v. Progressive Express Insurance Company, (County Court, 11th Judicial Circuit, F) [11 Fla. L. Weekly Supp. 136b]. However, in order to find the statute “in error,” the Court would have to find the statute unconstitutional or meaningless. There is no challenge by the Plaintiff of the Defendant in this case that the Statute was unconstitutional and meaning must be given to all statutes enacted.
7. It is the duty of the Court to apply the law based upon its common meaning and not ignore the law as written.
8. The Court finds that although the statute could have been written clearer, the legislative intent in enacting F.S. 627.736(5)(b)5 (2001) was to adjust the amount allowed annually.
IT IS THEREFORE ORDERED AS FOLLOWS:
Plaintiff’s Motion for Summary Judgment is Granted and Defendant’s Motion for Summary Judgment is Denied, and the Parties are directed to calculate the amount due and owing based upon the application of the “Limiting Charge” and the Consumer Price Index, South Region-Urban Consumers, under the category of Medical Care.
CERTIFICATION TO THE FIFTH DISTRICT COURT OF APPEALS
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 certifies the following questions to the Fifth District Court of Appeals as one of Great Public Importance:
1. Whether the phrase, “allowable amount under Medicare Part B” as used in F.S. 627.736(5)(b)5 (2001), refers to Medicare’s “Participating Fee Schedule” or Medicare’s “Limiting Charge” amount.
2. Whether Progressive was required to make any adjustments to the allowable amount paid pursuant to the Consumer Price Index, South Region-Urban Consumers, Medical Care category since the medical Consumer Price Index for Florida was a nonexistent index.
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