11 Fla. L. Weekly Supp. 251c
Insurance — Personal injury protection — Claim for magnetic resonance imaging services by plaintiff which provided MRI images of insured’s spine to independent contractor to interpret films and render a report, compensated contractor on a per read basis, and submitted bill to insurer which included a 500% markup on professional component of MRI — Fee-splitting — Patient brokering — Plaintiff’s activities constitute violation of statute prohibiting patient brokering and split-fee arrangements since bill for amount in excess of amount paid to contractor is in effect a referral fee for brokering insured to contractor — Arrangement violates prohibition on fee-splitting regardless of fact that plaintiff is billing insurer for kickback rather than receiving kickback from contractor — Notice of claim — Insurer was not put on notice of loss and amount of loss is not properly payable where HCFA form submitted by plaintiff which merely indicated “signature on file” in box 31 failed to certify that services were rendered and was patently deceptive in leaving box 32 blank as to name and address of entity where services were rendered, failing to identify purchased service of independent contractor in box 20, and identifying physician’s supplier’s billing name and EIN as that of plaintiff — Medical services lawfully rendered — Insurer is not responsible to pay for treatment billed by plaintiff which hired contractor to perform medical services on its behalf and, therefore, did not render services — Summary judgment granted in favor of insurer
RADIOLOGY B & SERVICES, INC., (NABILA RAZA), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-024589 COCE 53. October 17, 2003. William W. Herring, Judge. Counsel: Matt Hellman, Matt Hellman, P.A., Plantation. Steven Lander.
FINAL SUMMARY JUDGMENT FOR DEFENDANT PROGRESSIVE EXPRESS INSURANCE COMPANY
THIS CAUSE having come before the Court for hearing on October 10, 2003, on Defendant Progressive Express Insurance Company’s Motion for Final Summary Judgment, and the Court having reviewed the file, the deposition of record, including Defendant’s motion, heard arguments of counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
Nature of the Case
1. The Plaintiff, Radiology B & Services, Inc. (“Radiology B”), brought this action seeking recovery of personal injury protection (“PIP”) benefits under section 627.736, Florida Statutes. By its complaint, Radiology B seeks recovery for an MRI interpretation provided to Nabila Raza, the insured under an automobile policy issued by Defendant, Progressive Express Insurance Company (“Progressive”).
2. Progressive moved for summary judgment, asserting that Radiology B was not entitled to payment of any PIP (or medical payment) benefits because the undisputed evidence of record establishes that Radiology B engaged in fee splitting of medical services with independent contractor Dr. Roberto Rivera, which is prohibited by Florida Statutes 817.505, that Radiology B’s submission of an improperly completed HCFA failed to give notice of a covered loss, in violation of Florida Statutes 627.736(5)(e) and 627.736(4)(b), and that Radiology B did not lawfully render any treatment or any meaningful service to the insured in this case.Findings of Fact
3. The facts material to Progressive’s motion for summary judgment are undisputed and established by the pleadings and depositions of record. The material facts are set forth below.
4. On or about September 5, 2002, the Claimant, Nabila Raza, was involved in a motor vehicle accident.
5. On October 24, 2002, Nabila Raza had an MRI of the spine performed on her, of which Radiology B took MRI images of the cervical area of Mrs. Raza’s spine.
6. Radiology B then provided the images to Dr. Roberto Rivera, an independent contractor, to read and interpret the films and render a report.
7. In return, Dr. Rivera was compensated $50.00 for the read on a “per read basis”.
8. Radiology B then submitted the bill, for CPT Code 72141, with a modifier of — 26 (signaling the professional component) to the Defendant.
9. Radiology B & Services submitted its HCFA for the services with a “SIGNATURE ON FILE” in box 31; box 32 left blank the name and the address of the facility where services were rendered; box 33 identified the physician’s supplier’s billing name as Radiology B. & Services, Inc.; box 20 indicates “no” for outside lab and does not indicate the $50.00 amount charged by Dr. Rivera; and box 25 contained the EIN number of Radiology B. Moreover, the HCFA submitted by Radiology B & Services also contained a charge for its services in the amount of $250.00 (a mark-up of 500%, for the services rendered by Dr. Rivera).
10. The Defendant provided an “Explanation of Benefits” to the Plaintiff, explaining its denial of the claim as it was submitted, and requested additional documentation from the Plaintiff if the Plaintiff thought the Defendant was in error.
11. The Court finds that Radiology B did not provide any treatment or any meaningful service to the patient, Progressive’s insured in this case. Moreover, the Court finds that Radiology B acts as simply a middleman creating an unnecessary, useless, extra layer of health care costs.
Conclusions of Law — Fee Splitting
12. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
13. Section 817.505 provides:
(1) It is unlawful for any person . . .to:
(b) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to a health care provider or health care facility.
14. The Court concludes that Radiology B’s activities constitute a clear violation of this statute which prohibits patient brokering and split-fee arrangements like the one that exists in this case between Radiology B and Dr. Rivera.
15. Radiology B is billing $250 for the professional component of the MRI services actually rendered by Dr. Rivera. Yet Dr. Rivera, who actually rendered the MRI services to Progressive’s insured, charged only $50 for the services. The payment sought by Radiology B would result in the splitting of the fee for the MRI service, with Radiology B receiving $250 [a 500% markup] and Dr. Rivera receiving $50 for the MRI services, which Radiology B did not render. In effect, Radiology B would be receiving a referral fee of $200 per scan for brokering this patient to Dr. Rivera. Any such split fee arrangement — especially the very disproportionate one involved in the present case — is against the public policy of this state and is also specifically prohibited by section 817.505.
16. The Court also finds that for the service that Dr. Rivera contracted for, the interpretation of an MRI, Radiology B did not exercise control or supervision over Dr. Rivera, so as to consider him an employee. Furthermore, no employee of Radiology B reviewed the results of the interpretation other than Dr. Rivera.
17. Florida Statute 817.505 reflects clear legislative intent to prohibit receipt of any kind of payment — “directly or indirectly. . . in any form whatsoever”. This statute clearly precludes Radiology B from billing Progressive $250 for the professional component of a diagnostic test for services that were rendered by Dr. Rivera, of which Dr. Rivera was paid $50 by Radiology B for said rendered service. The fact that, by contract, Radiology B moves the money in a different direction by billing the insurer for its kickback does not make the arrangement lawful. The legislature was clearly concerned with prohibiting the end result of sharing the fee, not the direction of the cash flow. Accordingly, the Court concludes that the split fee arrangement that exists between Radiology B and Dr. Rivera is contrary to the public policy of this state as reflected in Florida Statute 817.505.
18. Specifically, based on the foregoing, the Court concludes that the $250 charged by Radiology B for the MRI professional component and the payment of $50 to independent contractor Dr. Rivera for actually rendering the MRI professional component, constitutes a split fee arrangement within the meaning of section 817.505. As such, payment of the insured’s PIP benefits to Radiology B under section 627.736, as sought by Radiology B in this case, would be contrary to the public policy of this state. The Court concludes that it would be illogical and unreasonable interpretation of the PIP statute to find that Radiology B is entitled to payment of PIP benefits thereunder when its activities are not only contrary to public policy but expressly prohibited by section 817.505.
Conclusions of Law — Lack of Notice
19. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
20. Florida Statute 627.736(5)(e), provides:
All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration 1500 form, UB 92 forms, or any other standard form approved by the department for purposes of this paragraph. All billings for such services shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) in the year in which services are rendered. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph.
21. Radiology B submitted a HCFA which contained nothing more than a “SIGNATURE ON FILE” in box 31, left box 32 blank as to the name and address of the entity where the service was rendered, did not identify the purchased service of independent contractor Dr. Rivera in box 20, in box 33 identified the physician’s supplier’s billing name as Radiology B, and box 25 identified the EIN of Radiology B. This Court finds that a health care provider/supplier, in submitting a claim on a HCFA form to an insurer pursuant to Florida Statutes 627.736, must certify that it has truthfully and accurately completed the HCFA form to the best of its knowledge and belief; must utilize proper CPT coding for the year in which the services are rendered; and must comply with the HCFA directions promulgated by the Health Care Finance Administration. A HCFA that does not comply in the foregoing manner does not put the insurer on notice of the loss or the amount of same and is not properly payable by the insurance company pursuant to F.S. 627.736. Radiology B did not certify that the treatment was rendered, did not properly identify who rendered the services and where, and did not identify the amount paid to the actual provider of service.
22. This Court finds that to “certify”, as in Box 31, means to attest as being true or as represented in writing. It is an affirmation of the truthfulness and accuracy of the information contained within the HCFA. Typing “SIGNATURE ON FILE” is legally insufficient. In order to certify, the person with personal knowledge of the information to be certified must actually sign/execute the HCFA containing the information being certified. This Court finds that Radiology B’s submission of the HCFA with a “SIGNATURE ON FILE” in box 31, was at a minimum, legally insufficient to put the insurer on notice of a covered loss, when considered with Plaintiff’s treatment of boxes 20, 25, 32, and 33, was misleading, untruthful, and apparently fraudulent.
23. This Court finds that for medical services to be considered “rendered” means to have actually performed the services. Radiology B did not perform the services rendered, but merely used an independent contractor, Dr. Rivera, to render the service. Moreover, Radiology B did not identify the actual provider of the service in box 25, box 31, box 32, or box 33.
24. The Court concludes that Radiology B’s submitted HCFA was a patent subterfuge and a patent deception, based upon the undisputed facts established in the record and as set forth above.
Conclusions of Law — Lawfully Rendered
25. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
26. Florida Statute 627.736(5)(a) provides:
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 guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies in cases involving no insurance.
27. This Court finds that for medical services to be considered “rendered” means to have actually performed the services. “Rendered” does not mean to hire another corporation or independent contractor to perform the medical services on Plaintiff’s behalf. To conclude otherwise would be inconsistent with the use of the word “rendered” and would cause the word to become meaningless and lead to an absurd statutory interpretation.
28. Radiology B did not perform the services rendered, but merely used an independent contractor, Dr. Rivera, to render the service. Florida Statute 627.736(5)(a) states that a provider “may charge only a reasonable amount for the services rendered”. Without providing a service there can be no question if it was reasonable. The term “rendered” in the statute refers to the provider’s obligation to provide treatment to the patient. An insurer is not responsible to pay for treatment billed by an entity that has not provided service or treatment.
29. Based upon the foregoing analysis, the Court concludes that Progressive is entitled to final summary judgment in this case. Specifically, the information before this Court shows that there is no genuine issue as to any material fact and that Progressive is entitled to a judgment as a matter of law.
30. The Court has carefully read Professional Consulting Services, Inc. v. Hartford Life and Accident Insurance Co., 849 So. 2d 446 (Fla. App. 2d 2003); and Radiology B & Services Inc. v. Progressive Express Insurance Co. Broward County County Court case No. 02-14779 (54) [10 Fla. L. Weekly Supp. 935b], dated September 15, 2003, authored by Judge Trachman, and finds both to be poorly reasoned. This Court instead follows the well-reasoned decisions in Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Co., 811 So. 2d 705 (Fla. App. 5th 2002); Federated National Insurance Co. v. Physicians Charter Service, 788 So.2d 403 (Fla.App.3rd 2001), rev. den. 807 So. 2d 654 (2002); and Nuwave Diagnostics, Inc. v. State Farm Mutual Automobile Insurance Co., 6 FLW [Fla. L. Weekly] Supp. 522 (Broward County Court, dated May 7, 1999). In Professional Consulting Services, Inc., supra, the Second District observed that nothing in the P.I.P. law generally nor in Section 627.736(5), F.S., specifically, prohibited after-loss assignments to third parties who were not medical providers, and if the legislature so intended, the statute would so state. The sole issue before the Court was the validity of an assignment between the patient/insured and the third party, not the reasonableness of the charges, and the Court bolstered its conclusion by noting that the 2001 amendment, Section 627.736(5)(b)(1), F.S., which permits an insurer to not pay a claim by a broker, was not effective as of the date of services/treatment in that case. In contrast, here the service, Dr. Rivera’s MRI interpretation and report (professional component), occurred on October 24, 2002, over a year after the 2001 amendment took effect on October 1, 2001! The Second District acknowledged that its decision was in conflict with the Fifth District’s in Medical Management Group of Orlando, Inc., supra, and possibly in conflict with the Third District’s in Physicians Charter Service, supra (the possible distinguishing factor there was the omission of mention whether the broker held an assignment from the insured, but how else could the broker have had standing to sue?). Even if the service herein had predated the effective date of the 2001 amendment, the Second District’s analysis is flawed in that it seized on the lack of express prohibition of what occurred here, in subsections (5)(a) and (e) of the P.I.P. statute to countenance and condone deceptive and fraudulent billing by a broker to a P.I.P. insurer, billing which makes it improperly appear that the broker performed the services. Curiously, Chief Judge Altenbernd in his concurring opinion questions the validity of the assignment in terms of the underlying consideration flowing from the appellant broker, as to no obligation to pay the true providers from the benefits payments (here there was consideration, Dr. Rivera was paid for his services); however, he could not make the further logical extension regarding the validity vel non of the deceptive billing practice. This Court adheres to the better reasoned, public-policy based rationales of the Fifth and Third Districts.
31. Judge Trachman’s and the Second District’s opinions assume that an entity may be eligible for payment of P.I.P. benefits yet not have to hold the requisite licenses nor have to actually perform the treatment, care, or services under Section 627.736(1)(a), F.S. However, it is axiomatic that to be eligible for such benefits, an entity must be subject to the P.I.P. statutory law. In other words, the entity billing the insurer and doing the suing must stand in the shoes of the actual provider, subject to all defenses against the actual provider, just as the patient/insured would have been so subject if he or she were seeking the benefits and doing the suing. Integral to such eligibility for benefits is the submission to the insurer of accurate, truthful, non-deceptive billings via the HCFA forms, a statutory responsibility under subsections (4)(b), (5)(a) and (e) of the P.I.P. statute that Plaintiff did not discharge. (Here, the Plaintiff could have simply purchased the claim by obtaining an assignment from Dr. Rivera, the actual provider, after Rivera obtained an assignment from the patient, but that could have played havoc with the 500% markup!)
FINAL JUDGMENT
IT IS HEREBY ADJUDGED that Plaintiff, Radiology B & Services, Inc. (a/a/o of Nabila Raza), take nothing by this action and Defendant, Progressive Express Insurance Company, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
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