13 Fla. L. Weekly Supp. 158a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 615a
Insurance — Personal injury protection — Coverage — Medical expenses — Nerve conduction velocity test and electromyography procedure — Where statute allows charges for NCV testing done in conjunction with EMG procedure to be billed at rate not exceeding 200% of fee schedule of Medicare Part B when both procedures are performed and billed solely by appropriately licensed physician and for payment under lower workers’ compensation rates when NCV does not meet those requirements, medical provider’s use of medical and physician assistants to perform physical portions of NCV and EMG did not require that provider be paid only under lower rates — Restrictive interpretation of statute taken by insurer would prevent physician from putting skills to more effective utilization, thereby maximizing insured’s PIP benefits, and would undermine intent of legislature to encourage physicians to delegate healthcare and clinical tasks to medical or physician assistants
ALL FAMILY CLINIC OF DAYTONA BEACH, INC., d/b/a FLORIDA MEDICAL ASSOCIATES, as assignee for NATASHA RENWICK, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2005-30302-COCI, Division 82. October 17, 2005. H. Pope Hamrick, Jr., Judge. Counsel: Luis R. Gracia, Rue & Ziffra, P.A., Port Orange, for Plaintiff. James Rinaman, III, James C. Rinaman, III & Associates, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY DISPOSITION AND PLAINTIFF’S CROSS MOTION FOR PARTIAL SUMMARY DISPOSITION
THIS CAUSE, having come before the Court upon Defendant’s Motion for Summary Disposition and Plaintiff’s Motion for Partial Summary Disposition, and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby denies Defendant’s Motion for Summary Disposition and grants Plaintiff’s Motion for Partial Summary Disposition on the following grounds:
FINDINGS OF FACT
The Court adopts the following facts as it finds them to be undisputed:
1. On January 29, 2004, Natasha Renwick, a State Farm insured, was involved in a motor vehicle accident wherein she sustained bodily injuries.
2. As a result of her injuries, Ms. Renwick underwent medical treatment under the care of the Plaintiff, All Family Clinic. Ms. Renwick also executed an Assignment of Benefits in favor of the Plaintiff, which was presented to the Defendant, State Farm.
3. As part of Ms. Renwick’s medical treatment, Dr. Frank Alvarez Jr., a board certified neurologist employed by the Plaintiff, ordered a Nerve Conduction Velocity (NCV) test to be performed in conjunction with a needle electromyography (EMG) procedure in order to determine whether Ms. Renwick suffered any nerve damage in the accident. The Defendant does not contend the necessity of the testing or the relatedness of such to Ms. Renwick’s motor vehicle accident.
4. Said NCV and EMG testing were done on March 23, 2004 at the Plaintiff’s facility with equipment owned by the Plaintiff.
5. The physical portion of the NCV test was conducted by Emily Fillipo, a full time medical assistant employed by the Plaintiff who works as Dr. Alvarez’s EMG tech, while the physical portion of the needle EMG procedure was performed by Dr. Alvarez’s physician’s assistant, John Plourde, also a full time employee of the Plaintiff. At all times material hereto Dr. Alvarez was in the office (Plaintiff’s premises) while the testing was being performed. Finally, Dr. Alvarez read and interpreted the raw data rendered by the procedures.
6. After the NCV and EMG tests were completed, the Plaintiff billed State Farm a charge based on CPT codes 95900 and 95904, including an additional amount representing an adjustment pursuant to the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region.
7. The Defendant paid the Plaintiff for the NCV and EMG tests an amount based on 200 percent of the participating physician fee schedule of Medicare Part B but did not pay the CPI adjustment to the satisfaction of the Plaintiff. As a result, Plaintiff filed suit against State Farm.APPLICABLE LAW AND ARGUMENT OF COUNSEL
8. At the outset, the Court notes that this case raises an issue of first impression in this county and perhaps in this state, and both counsel for Plaintiff and Defendant are not aware of any case on point dealing with the issue in this case.
9. Charges for NCV testing are regulated by sections 627.736(5)(b)3 & 4 of the Florida Statutes. Specifically, the statutes state as follows:
“(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
3. Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for medically necessary nerve conduction testing when done in conjunction with a needle electromyography procedure and both are performed and billed solely by a physician licensed under chapter 458, chapter 459, chapter 460, or chapter 461 who is also certified by the American Board of Electrodiagnostic Medicine or by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association or who holds diplomate status with the American Chiropractic Neurology Board or its predecessors shall not exceed 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year’s changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor.
4. Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for medically necessary nerve conduction testing that does not meet the requirements of subparagraph 3. shall not exceed the applicable fee schedule or other payment methodology established pursuant to s. 440.13.”
10. Based on section’s (5)(b)(3) language allowing charges for NCV testing when done in conjunction with a needle EMG not to exceed 200 percent of the Medicare fee schedule when“both are performed and billed solely by a physician licensed under chapter 458, chapter 459, chapter 460, or chapter 461 who is also certified. . . ”,(emphasis added), the Defendant moved for Summary Disposition alleging that since Dr. Alvarez did not solely perform and bill for the procedures as required by the statute, Plaintiff should have been paid for them under section (5)(b)(4), i.e., the workers’ compensation fee schedule of chapter 440.13. As a result, the Defendant argues that it actually overpaid the Plaintiff for the charges it submitted regarding the NCV and EMG tests.
11. In response to Defendant’s motion, Plaintiff also moved for Partial Summary Disposition arguing, inter alia, that it complied with section 627.736(5)(b)(3) as intended by the legislature and that Defendant’s literal interpretation of the above mentioned section would undermine the intent of the legislature of encouraging physicians to use medical and physician assistants, disregards the practice and custom of business dealings between insurers and medical providers and would otherwise lead to absurd and unintended results.
12. In order to substantiate its position, the Defendant relies on the well established line of cases that stand for the proposition that when the language of the statute is clear and unambiguous, and conveys a clear and definite meaning, the statute must be given its plain and ordinary meaning and that a basic rule of statutory construction provides that since the Legislature does not intend to enact useless provisions, courts should avoid readings that would render part of the statute meaningless. State of Florida v. Warren, 796 So.2d 489 (Fla. 2001), Hechtman v. Nations Title Ins., 840 So. 2d 993 (Fla. 2003), State v. Goode, 830 So. 2d 817 (Fla. 2002).
13. On the other hand, the Plaintiff relies on the also well known line of cases stating that legislative intent is the polestar by which the court must be guided in statutory construction, even when at odds with the strict letter of the statute and that a cardinal tenet of statutory construction cautions against giving a literal interpretation of the statute if doing so would lead to an unreasonable or absurd conclusion, plainly at variance with the purpose of the legislation as a whole. State v. Webb, 398 So. 2d 820 (Fla. 1981), Burris v. State, 825 So. 2d 1934 (Fla. 5th DCA 2002), Castillo v. Vlamick de Castillo, 771 So. 2d 609 (Fla. 3d DCA 2000).
14. The issue that this Court is called upon to adjudicate is whether, pursuant to the provision contained in section 627.736(5)(b)(3) allowing charges for NCV testing when done in conjunction with EMG procedures to be billed at a rate not exceeding 200 percent of the fee schedule of Medicare Part B when both procedures are performed and billed solely by an appropriately licensed physician, Dr. Alvarez’s use of his medical and physician assistants to perform the physical portion of the tests rendered the procedures billable under 627.736(5)(b)(4) instead of 627.736(5)(b)(3).
15. The Court takes note in the fact that the Defendant is not contending that by allowing medical and physician assistants to perform the physical portions of the NCV and EMG the Plaintiff is not entitled to charge for them. The Defendant agrees that medical and physician assistants are able to perform these tests under Florida law. However, as stated above, the Defendant argues that the provision requiring a licensed physician to both perform and bill for the procedures entitles the Plaintiff to be paid only under the lower rates of section 627.736(5)(b)(4).
16. After extensive argument of counsel, the Court agrees with Plaintiff’s position that Defendant’s interpretation of the statute is too restrictive and goes contrary to intent of the legislature of encouraging the use of medical and physician assistants by licensed physicians in Florida. Further, Defendant’s literal interpretation of the statute would not allow for the Plaintiff, as an assignee of State Farm’s insured, to maximize the PIP benefits to which it may entitled by preventing medical providers from billing for NCV and EMG testing under section 627.736(5)(b)(3) if their medical and physicians assistants were to perform any part of such tests.
17. In so holding, the Court is not unmindful of Defendant’s argument that, by definition, the word solely means “without another or to the exclusion of all else”. Webster On-Line Dictionary. The Court also notes Defendant’s argument that “a provision in a statute implies the exclusion of another.” Finkelstein v. North Broward Hosp. Dist., 484 So. 2d 1241 (Fla. 1986). However, in this case, the Court agrees with Plaintiff’s position that under Florida law, “when part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or other statutes in pari materia, courts will examine the entire act or those in pari materia to ascertain the over-all legislative intent.” Florida State Racing Commission v. McLaughlin, 102 So. 2d 574 (Fla. 1958).
18. Section 458.3485 of the Florida Statutes defines a medical assistant as a “professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician”. (Emphasis added). Thus, by the statute’s definition of a medical assistant, the legislature obviously contemplates the use of medical assistants by physicians in all areas of their practice while making it clear that physicians using the assistants’ services will be responsible for the medical assistants’ acts.
19. The practice of physician assistants in Florida is regulated by Florida Statute 458.347. The legislative intent behind the statute is expressly contained in subsections (1)(a) and (c). Specifically, the statute provides as follows:
“(1) LEGISLATIVE INTENT.
(a) The purpose of this section is to encourage more effective utilization of the skills of physicians or groups of physicians by enabling them to delegate health care tasks to qualified assistants when such delegation is consistent with the patient’s health and welfare.”
“(c) The purpose of this section is to encourage the utilization of physician assistants by physicians and to allow for innovative development of programs for the education of physician assistants.”
20. Further, section (3) of the statute states in relevant part as follows:
“(3) PERFORMANCE OF SUPERVISING PHYSICIAN. Each physician or group of physicians supervising a licensed physician assistant must be qualified in the medical areas in which the physician assistant is to perform and shall be individually or collectively responsible and liable for the performance and the acts and omissions of the physician assistant.”(Emphasis added).
21. As patently demonstrated by the statute, the legislature intended to encourage the utilization of physician assistants in order to allow physicians to use their skills in the most effective manner possible to benefit their patients. In addition, the statute holds the physician responsible for the performance of the physician assistant.
22. The Court takes notice that in this case, the Plaintiff, as Ms. Renwick’s medical provider, obtained an Assignment of Benefits from State Farm’s insured. As a result, the court finds that Plaintiff, as State Farm’s insured’s assignee, had a right to maximize the PIP benefits available under State Farm’s policy. See Bennett v. State Farm Mut. Auto. Ins. Co., 580 So.2d 217 (Fla. 2d DCA 1991).
23. In light of the above, the Court finds that under State Farm’s restrictive interpretation of the “performed and billed solely by a physician” provision contained in section 627.736(5)(b)(3), Dr. Alvarez, as well as other appropriately licensed physicians in this state, would not be able to put his skills to a more effective utilization, as in order to maximize any PIP benefits to which the Plaintiff may be entitled, he would have to perform tasks that are clearly within the legislatively stated purview and duties of medical and physician assistants in the state of Florida. As already stated in the body of this order, such would undermine the clear intent and purpose of the legislature of encouraging physicians to delegate health care and clinical tasks to their medical or physician assistants.
24. Accordingly, Defendant’s Motion for Summary Disposition is hereby DENIED. Plaintiff’s Motion for Partial Summary Disposition is hereby GRANTED. The Court reserves jurisdiction over the matter of attorneys’ fees and costs.
