11 Fla. L. Weekly Supp. 259a

Insurance — Personal injury protection — Claim for magnetic resonance imaging filed by medical provider which provided technical component and paid radiologist to perform professional component of MRI on per reading basis — Patient brokering — There are no facts tending to show that a patient referral exists within the meaning of section 817.505(1), that circumstances do not fall within purview of professional consultation exception of section 817.505(3)(c) or that provider’s contractual arrangement with radiologist falls within purview of prohibitions on kickbacks set forth in section 456.054(1) and (2) — Rendering services — Where provider provided technical component of MRI, financed production of the professional component, transmitted the images to the radiologist, and received and transmitted the interpretation to the ordering physician and insurer, provider was involved in rendering complete professional service — Fee-splitting — Where contractual arrangement with radiologist assigns right to bill for radiologists services to medical provider and forbids direct billing by radiologist, there is no professional fee split since there is none charged by radiologist — Medicare Part B limiting charge is allowable charge within meaning of Florida No-Fault provision enacted in 2001 — Claim forms — Claim using CPT code without modifier to designate technical component is valid where insurer has made it impossible for technical components to be billed separately by failing to establish any specific reporting policies for separate billing of technical components — There is no misrepresentation in medical provider indicating that no outside lab was involved as term “outside lab” as used by Health Care Finance Administration does not refer to mere professional consultation service involving no technical testing service — Signature of physician — Argument that claim is invalid due to absence of a physician’s signature attempts to raise “properly completed” concept adopted in statute not yet in effect — Summary judgment granted in favor of provider

OAKLAND PARK OPEN MRI, INC. (K. Parrish), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CO-CE-03-003693 (54). December 23, 2003. Lisa G. Trachman, Judge. Counsel: Charles J. Kane, Kane & Kane, Boca Raton. Matt Hellman, Plantation.

Final Summary Judgment for Plaintiff

On December 3, 2003 the Court heard Plaintiff’s Amended Motion for Summary Final Judgment. The Plaintiff timely filed the affidavits of the patient’s treating physician, the Plaintiff’s billing manager and the deposition of the Defendant’s adjuster establishing a prima facie case. The record also includes the depositions of Plaintiff’s representative, Rosina Kizer and Dr. Bruce A. Rodan, the interpreting radiologist, filed by the Defendant.

The questions presented were: (1) Does the failure of a provider of technical services and the provider of the professional services to report the technical and professional components separately result in an appropriate denial of payment? (2) Is the relationship between a health care facility and health care provider illegal as “fee splitting” if there is not a business relationship between the referring physician and/or the facility and the interpreting radiologist and the relationship between the facility and the radiologist is not conditioned on a referral basis, but of a per interpretation reading?

UNDISPUTED FACTS

Plaintiff (“OAKLAND PARK”) holds a valid irrevocable assignment of benefits from Defendant’s (“PROGRESSIVE’s”) insured and submitted a request for payment to PROGRESSIVE on a HCFA 1500 form containing a statement of charges together with a written interpretation of the images done by Dr. Bruce A. Rodan, M.D. The statement used a proper CPT code (72148) for an MRI of the lumbar spine billed at $1331.64, pursuant to Florida Statute 627.736(5)(b)5. PROGRESSIVE received the claim submission on January 8, 2003.

On January 14, 2003 PROGRESSIVE disallowed the claim submission demanding a re-bill saying, “Since you are only performing the technical service (TC) please re-bill under the correct code and modifer (TC) if you wish reimbursement.” OAKLAND PARK never resubmitted that claim.

OAKLAND PARK paid Bruce A. Rodan, M.D. P.A. for the services of a board certified radiologist to interpret each MRI. OAKLAND PARK created the MRI and forwarded the images to Dr. Rodan for his interpretation. The Plaintiff paid Dr. Rodan’s professional association $55 per interpreted scan. The Defendant did not assert that the Plaintiff is not the 100% owner or lessee of the MRI equipment used. Rosina Kizer testified it was, hence, the Plaintiff is not a “broker” within the meaning of F.S.§627.732(1).

Absence of Patient Referral

The Answer and Affirmative Defenses allege no patient referral between the Plaintiff and Dr. Rodan although the Defendant argued that Plaintiff’s transmittal of images to Dr. Rodan for review was tantamount to a patient referral. At the hearing the Defendant conceded that the procedure used was the electronic transmittal of images by OAKLAND PARK to Dr. Rodan who interprets the images and renders his report to the Plaintiff. Dr. Rodan has never met the subject patient and has issued no bill to her or to the Defendant.

No Evidence of Illegality

The Defendant filed a memorandum in opposition to Plaintiff’s motion asserting several other matters that were not within the factual pleadings in the affirmative defenses. Nevertheless, the Court has considered those arguments and rejects them.

There are no facts asserted tending to show the Plaintiff has violated any applicable law cited by the Defendant. There are no facts pled tending to show the Plaintiff is a podiatrist governed by Chapter 461, F.S., a medical doctor governed by Chapter 458, F.S., that a patient referral exists within the meaning of F.S. §817.505(1) or that the circumstances do not fall within the purview of the “professional consultation” exception of F.S.§817.505(3)(c). There are no factual allegations tending to show nor were any facts adduced tending to show that the Plaintiff’s contractual arrangement with the radiologist falls within the purview of the prohibitions on kickbacks as set forth in F.S.§456.054(1) or (2).“Rendering”

Services

The Defendant contends that the Plaintiff did not “render” the professional component of the testing, relying on several cases involving companies that did not provide the technical component of the testing. Those cases are clearly factually inapt as it is undisputed that the Plaintiff did provide that component. The term “rendering” as used at F.S.§627.735(5) became part of Florida law in 1971 before the invention of MRI technology. Hence, it cannot be said that the use of that term contemplated a prohibition on the contractual arrangement presented in this case.

Clearly the Plaintiff financed the production of the professional component on a non-contingent fee basis, transmitted the subject images to the radiologist, received and transmitted the interpretation to the ordering physician and to the insurer together with a bill submitted on the appropriate form. It cannot be reasonably asserted that the Plaintiff was not involved in “rendering” the complete professional service that included ordering, gathering and forwarding the written interpretation, presentation of the claim to the insurer (all involving administrative expense) and the business risk that the entire claim might be subject to some other applicable insurance defense. “Rendering” does not have the simple, limited plain meaning that Defendant ascribes. The Merriam-Webster Online Dictionary provides:

¹ren搞er 
Pronunciation: ‘ren-d&r

Function: verb
Inflected Form(s): ren搞ered; ren搞er搏ng /-d(&-)ri[ng]

/
Etymology: Middle English rendren, from Middle French rendre to give back, yield, from (assumed) Vulgar Latin rendere, alteration of Latin reddere, partly from re- + dare to give & partly from re- + -dere to put — more at DATE

, DO

transitive senses
1 a : to melt down <render suet>; also : to extract by melting <render lard> b : to treat so as to convert into industrial fats and oils or fertilizer
2 a : to transmit to another : DELIVER b : GIVE UP, YIELD c : to furnish for consideration, approval, or information: as (1) : to hand down (a legal judgment) (2) : to agree on and report (a verdict)
3 a : to give in return or retribution b (1) : GIVE BACK, RESTORE (2) : REFLECT, ECHO c : to give in acknowledgment of dependence or obligation : PAY d : to do (a service) for another
4 a (1) : to cause to be or become : MAKE <enough rainfall… to render irrigation unnecessary — P. E. James> <rendered him helpless> (2) : IMPART b (1) : to reproduce or represent by artistic or verbal means : DEPICT (2) : to give a performance of (3) : to produce a copy or version of <the documents are rendered in the original French> (4) : to execute the motions of <render a salute> c : TRANSLATE
5 : to direct the execution of : ADMINISTER <render justice>
6 : to apply a coat of plaster or cement directly to
intransitive senses : to give recompense
– ren搞er戢ble  /-d(&-)r&-b&l

/ adjective
– ren搞er搪r  /-d&r-&r

/ noun[Emphasis supplied]

It is undisputed that the Plaintiff rendered the images that the radiologist used as a basis for the consulting opinion. It is undisputed that the Plaintiff “transmitted to another” (in this case the radiologist) those images that the radiologist used. It is undisputed that the Plaintiff thereafter transmitted the report to the ordering physician and to the insurer. Hence, it cannot be denied that the imaging facility was not involved in rendering the report and did indeed “cause” that report “to be or become” by making a contractual agreement with the radiologist and paying him without any contingency of non-payment by any third party, and transmitting the finished product.

Use of independent contractors in the delivery of health care services has been addressed in federal regulation of Medicare reimbursements specifically authorizing reimbursement of suppliers billing for contracted services. 42 CFR §424.80(b)(3). Although not effective at the time of these events, the Florida legislature has since established a public policy expressly protecting the manner of billing used in this case. F.S.§627.732(14); Laws 2003, c. 2003-411, §7 eff. October 1, 2003.

The concern over “brokered” services that triggered the 2001 amendments to the No-Fault Law creating that concept was fundamentally based on fraudulent practices resulting in unnecessary services and inflated charges. The facts of this case present no genuine material question of fact on the necessity for the subject MRI. The legislature has addressed the cost issue by establishing presumptively reasonable rates.

No Fee-Splitting

The Defendant cites several administrative rulings addressing fee splitting between physicians. These and other rulings are addressed in an article by Richard O. Jacobs and Elizabeth Goodman in 1999 Annals of Health Law 239 “Splitting Fees or Splitting Hairs? Fee Splitting and Health Care — The Florida Experience” that illustrates a great deal of confusion and inconsistency in administrative rulings. The Court finds these rulings are not dispositive of these issues.

The contractual arrangement with Dr. Rodan’s professional association clearly assigned his right to bill for his services to the Plaintiff and expressly forbids any direct billing by that association to the patient or any third parties. Thus, there is no professional fee that is split as none is charged by the radiologist. The independent contractor merely receives a contract rate for consulting services supplied to the Plaintiff. This is not “fee splitting” as recognized in Practice Management Asst Inc v. Orman, 614 So.2d 1135 (Fla. DCA 1993) defined it as a “dividing of a professional fee (emphasis provided) for specialist medical services with the recommending physician”. Rather, it is payment for professional services rendered to the Plaintiff.

Limiting Charge

The Defendant asserts Plaintiff’s use of the limiting charge under Medicare Part B rather than the participating charge illegally inflates the charges. The limiting charge is an allowable charge within the meaning of the applicable Florida No-Fault provision enacted in 2001. National Imaging Center, Inc. (Rose Theodore) v. Illinois National Insurance Company d/b/a Florida Automobile Joint Underwriter Association, Case No. COCE 02-004353-49 (Order Granting Plaintiff’s Motion for Partial Summary Judgment October 7, 2003); Lakeland Open MRI a/a/o Barbara Padgett v. Mercury Casualty Company, Case No. 02-3089 SP 20 (Order Granting Plaintiff’s Motion for Partial Summary Judgment and Denying Defendant’s Motion for Final Summary Judgment October 27, 2003).Improper Use of HCFA Form 1500

The Defendant asserts the Plaintiff improperly coded using only CPT Code 72148 without rebilling using the modifier “TC” to designate the technical component that Defendant understood Plaintiff performed. The applicable CPT code has no modifier designated as “TC”.

Fla. Stat. §627(5)(c) requires the statement of charges must be furnished to the insurer by the provider and here there are indeed two providers, one of professional services and one of technical services, which might lead one to desire two separate billings. But the statute must be read as a whole and F.S. §627.736(5)(e) mandates “All billing shall, to the extent applicable, follow the Physicians Current Procedural Terminology CPT for the year in which services were rendered.” Reading these two provisions together creates impossibility when third party payers have not established a modifier for technical billings. The Second Edition Principles of CPT Coding, published by the American Medical Association for the year 2001 has no billing code for the technical component and for reasons states: “the CPT nomenclature does not contain a coding convention to designate the technical component for a procedure or service. . . because it is designed for physicians. However, to make possible separate billings many third party payers have established modifiers and/or specific reporting policies for reporting the technical component. . . reporting and reimbursement policies vary among insurance companies.” The Second Edition Principles of CPT Coding instructs providers of the technical components to familiarize themselves with these various policies. There being no substantial competent evidence that PROGRESSIVE has established any specific reporting policies for separate billing of technical components, and none being made known in the notice of denial, the Court finds that PROGRESSIVE has made it impossible for technical components services to be billed separately. Acknowledging that the law cannot be read in a manner that creates an absurdity, the Court finds therefore that OAKLAND PARK had provided legal timely notice of the loss.

Defendant asserts Plaintiff misled it by checking “No” at Box 20 of the claim form indicating there was no “outside lab” involved. It is clear there is no misrepresentation, as the term “outside lab” as used by the Health Care Finance Administration in the subject form does not refer to mere professional consultation services involving no technical testing services.

Defendant further asserts the claim form is invalid as a physician did not sign the claim form at Box 31. It appears Defendant’s arguments attempt to raise the “properly completed” concept recently adopted and made effective October 1, 2003. F.S.§627.7321(13); Laws 2003, c. 2003-411, §7 eff. October 1, 2003. The Court has no authority to address or apply a statute not yet in effect. Article I, §10, The Florida Constitution. The record clearly shows the Defendant had actual notice of the nature and amount of the claim as required by F.S.§627.736(4)(b).

There being no affidavits or other proof by PROGRESSIVE to show a genuine material question of fact, Plaintiff is entitled to and hereby is granted Summary Final Judgment in the principal sum of $1065.31 plus prejudgment interest from January 8, 2003 in the sum of $61.08 making a total sum of $1126.39 for which let execution issue.

The Plaintiff is also entitlement to reasonable attorneys fees and costs. The Court reserves jurisdiction to award attorneys fees and costs.

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