12 Fla. L. Weekly Supp. 663a
Insurance — Personal injury protection — Medical expenses — Functional capacity testing — Patient brokering — Kickbacks — Where technician employed by plaintiff mobile diagnostic business traveled to medical provider’s office to perform FCEs in provider’s treatment room, technician used plaintiff’s marketing method to obtain referral of insured by instructing provider he could bill for professional component of FCEs, marketing materials described to provider that referral would increase provider’s revenues by ability to bill substantial professional component, plaintiff’s method for soliciting referral of insured is unlawful as billing of professional component acted as improper financial consideration that induced referral — Billing of technical component and professional component for same FCEs is unlawful and violates spirit of statutes prohibiting patient brokering and kickbacks — Plaintiff that engaged in unlawful billing practices has failed to lawfully render reimbursable service pursuant to PIP statute
WISE DIAGNOSTIC SOLUTIONS, a/a/o Daniela Volkert, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2003 SC 005988. August 20, 2004. Judith Hawkins, Judge. Counsel: Robert H. Peterson, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Vincent Gallagher.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION
THIS CAUSE, having come before The Honorable Judith Hawkins on July 1, 2004 upon Defendant’s Motion for Summary Disposition and the Court having been fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
1. Plaintiff, WISE Diagnostic Solutions (“WISE”), is a mobile diagnostic business that performs Functional Capacity Evaluations (“FCEs”) on patients referred to it by various medical providers.
2. Reed Mathis, D.C., was the treating chiropractic physician for Progressive’s insured, Daniela Volkert. Dr. Mathis referred Ms. Volkert to WISE for FCEs.
3. WISE’ s technician, Missy Sherrer, traveled to Dr. Mathis’ office to perform the FCEs in one of his treatment rooms.
4. WISE submitted a HCFA 1500 (“bill”) utilizing multiple CPT Codes, each of which contained the technical component modifier (“TC”) .
5. Dr. Mathis submitted a bill for the identical CPT Codes billed by WISE, each of which contained the professional component modifier (“-26”).
6. Ms. Sherrer, as agent for WISE, utilized WISE’s marketing method to obtain the referral of Ms. Volkert. Ms. Sherrer instructed Dr. Mathis that he could bill for the professional component of the FCEs rendered by her on behalf of WISE. Furthermore, WISE’s marketing materials expressly describes to physicians the benefit that a referral would increase the clinic’s revenues through the ability to bill a substantial professional component.
7. WISE’s business method for soliciting the referral of Ms. Volkert is unlawful. The billing of the professional component acted as an improper financial consideration that induced Dr. Mathis’ referral of Ms. Volkert to WISE. The billing of the technical component and professional component for the same FCEs is unlawful and violates the spirit of Florida Statutes §817.505 and §456.054.
8. Florida Statute §817.505 reads in pertinent part:
817.505 Patient brokering prohibited; exceptions; penalties. —
(1) It is unlawful for any person, including any health care provider or health care facility, to:
(a) Offer or pay 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, to induce the referral of patients or patronage from a health care provider or health care facility;
(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; or
(c) Aid, abet, advise, or otherwise participate in the conduct prohibited under paragraph (a) or paragraph (b).
Statute §456.054 reads in pertinent part:
456.054. Kickbacks prohibited
(1) As used in this section, the term “kickback” means a remuneration or payment back pursuant to an investment interest, compensation arrangement, or otherwise, by a provider of health care services or items, of a portion of the charges for services rendered to a referring health care provider as an incentive or inducement to refer patients for future services or items, when the payment is not tax deductible as an ordinary and necessary expense.
(2) It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.
(3) Violations of this section shall be considered patient brokering and shall be punishable as provided in §817.505.
9. It is the finding of this Court that Plaintiff has failed to lawfully render a reimbursable service pursuant to the Florida PIP Statute as it has engaged in unlawful billing practices.
Defendant’s Motion for Summary Disposition is hereby granted.
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