13 Fla. L. Weekly Supp. 416a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Medicare Part B fee schedule — Consumer Price Index adjustment — Trial court erred in retroactively applying 2003 amendment to section 627.736(5)(b)5, which changed the timing of CPI adjustments to Medicare Part B fee schedule for MRI services to August 1 to reflect entire calendar year’s CPI changes, where inclusion of effective date in statute rebuts any argument that statute is retroactive — Where applicable 2001 version of statute provides that first annual CPI adjustment was to occur on November 1, 2002, insurer was not required to make CPI adjustment to fee schedule before paying bills for MRI service provided prior to November 1, 2002
ALLSTATE INSURANCE COMPANY, et al., Appellants, vs. S.M.S., D.O., P.A., d/b/a GULF COAST MEDICAL CENTER, et al., Appellees. Circuit Court, 5th Judicial Circuit (Appellate). Case No. H27-CA-05-109 Consolidated with Case Nos. H27-CA-05-110, H27-CA-05-111, H27-CA-05-112, H27-CA-05-113, H27-CA-05-114, H27-CA-05-115. January 18, 2006. Appeal from the County Court for Hernando County, The Honorable Peyton B. Hyslop. Counsel: Charles W. Hall and Mark D. Tinder, St. Petersburg, for Appellant. Amy G. Cohen, New Port Richey, for Appellee.
OPINION
(LAMBERT, B., J.) The issue in this consolidated appeal involves the interpretation of the 2001 amendment to the Florida Motor Vehicle No-Fault law which established a fee schedule for personal injury protection (“PIP”) benefits payable to magnetic resonance imaging (“MRI”) providers as well as the effect, if any, of the 2003 amendment to that statute. See §627.736(5)(b)5, Florida Statutes; Millennium Diagnostic Imaging Center, Inc. v. Security National Insurance Company, 882 So.2d 1027 (Fla. 3d DCA 2004).
The facts of this case are basically undisputed. Effective June 19, 2001, the legislature enacted §627.736(5)(b)5 of the Florida Statutes, which established the maximum allowable amounts that medical providers were permitted to charge for magnetic resonance imaging (“MRI”) services in PIP cases. The statute states:
Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200% of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175% of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical consumer price index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and its insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200% of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical consumer price index for Florida. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in Chapter 395 rendered by facilities licensed under Chapter 395.
In these consolidated cases, Appellant, Allstate, was the PIP insurer for its various insureds. Subsequent to the enactment of the above statute and on various dates prior to November 1, 2002, Allstate’s insureds received MRI services from the Appellee, Gulf Coast. Appellee submitted its bills directly to Allstate for payment and Allstate timely paid the bills in the maximum amount allowed under the 2001 Medicare Part B fee schedule. Gulf Coast nevertheless sued Allstate, asserting that Allstate had underpaid the bills because Allstate failed to make an upward consumer price index (“CPI”) adjustment to the fee schedule before paying these bills.
Allstate responded that the plain language of the statute did not require the first CPI adjustment until November 1, 2002, which was one (1) year after the permanent fee schedule rate was established by the statute and since all of the MRI bills in these consolidated cases were for MRI services provided prior to November 1, 2002, and the PIP insurance policies were issued during the effective year in which the services were provided, Allstate contended that its only obligation was to pay the bills at the unadjusted fee schedule amount. Both parties filed motions for summary judgment. At the hearing on the motions filed in all cases, the trial court granted the Appellee’s motion for summary judgment, denied Appellant’s motion and rendered separate final judgments in favor of the Appellee against the Appellant for the sums owed for the consumer price index adjustment. This timely appeal ensued.
In 2003, the Florida legislature amended §627.736(5)(b)5. In pertinent part, the statute states:
Beginning November 1, 2001. . .allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the Accreditation Association for Ambulatory Healthcare, the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200% of the allowable amount under the participating 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 Medicare 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 for the 12-month period ending June 30 of that year.
As such, the 2003 version of this statute changed the timing of the CPI adjustments to August 1 to reflect the entire calendar year’s CPI changes. This is in contrast to the 2001 version of the statute that established that the CPI adjustments were to be first made annually after the permanent fee schedule maximums came into effect on November 1, 2001.
The first question we need to determine is the applicability of the 2003 statute. There are two (2) interrelated inquiries which arise when determining whether statutes should be retroactively applied. The first inquiry is one of statutory construction: whether there is clear evidence of legislative intent to apply the statute retrospectively. Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494, 499 (Fla. 1999); Hassen v. State Farm Mutual Automobile Insurance Company, 674 So.2d 106, 108 (Fla. 1996). If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible. Id., see also State Farm Mutual Automobile Insurance v. Laforet, 658 So.2d 55, 61 (Fla. 1995). The general rule is that, in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively. Aero Air, Inc. v. Walsh, 645 So.2d 422, 425 (Fla. 1994). There is also a presumption in the law that new statutory amendments are not to be given retroactive application. They operate prospectively only. Promontory Enterprises, Inc. v. Southern Engineering and Contracting, Inc., 864 So.2d 479 (Fla. 5th DCA 2004). Ultimately, the essential purpose of any statutory construction is to determine the legislative intent in enacting the statute. City of Boca Raton v. Gidman, 447 So.2d 1277, 1281 (Fla. 1983).
The 2003 amendment to §627.736(5)(b)5 is contained in the “Florida Motor Vehicle Insurance Affordability Reform Act”, Ch. 2003-411, Section 1, Laws of Florida. That act amended eleven (11) statutes and created or deleted several others. Id. at §2-21. In only two (2) of the eleven (11) amendments of the Act, namely, the amendments to §456.0375(1)(b) and §627.7295, did the legislature specifically express that these amendments would operate retroactively. As to the other nine (9) amendments, including the amendment to §627.736(5)(b)5 at issue, the legislature expressly stated that “except as otherwise expressly provided in this act, this act shall be effective October 1, 2003.” When analyzing whether the retroactive application of a law was intended by the legislature, the inclusion of an effective date in the statute by the legislature effectively rebuts any argument as to the retroactivity of the statute. In re Name Change Petition of Mullin, 892 So.2d 1214, 1215 (Fla. 2d DCA 2005). Since the legislative intent of the 2003 amendment to §627.736(5)(b)5 was that it not have retroactive effect, the trial court erred in retroactively applying the statute to the present dispute.
The remaining issue for resolution by this Court is the legislative intent of the 2001 statute regarding the timing of the CPI adjustment. The plain language of the statute reflects that from the enactment of this statute, June 19, 2001, and up to November 1, 2001, a specific allowable amount may be charged to the PIP insurer and insured for MRI services. Effective November 1, 2001, that amount was also set by the legislature subject to annual adjustments by the additional amount equal to the medical consumer price index for Florida. We interpret this statute to mean that the first annual CPI adjustment was to take place November 1, 2002. Appellee’s argument that Millennium Diagnostic Imaging Center, Inc. v. Security National Insurance Company, 882 So.2d 1027 (Fla. 3d DCA 2004) establishes that the 2003 amendment was enacted to clarify the 2001 statute is misplaced as to the facts/issues of this appeal. The 3d DCA found that the 2003 amendment clarified that the participating physician fee schedule of the Medicare Part B fee schedule was the proper fee schedule under the original statue. Id. at 1030. It did not address the timing of the CPI adjustment.
The final judgments entered in these cases are REVERSED and these cases are REMANDED for entry of separate final summary judgments in favor of Allstate. (MERRITT, D., SR. and SEMENTO, L., JJ. concur.)
