13 Fla. L. Weekly Supp. 347a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Bill in excess of statutory amount — Insurer’s motion for summary judgment raising for first time defense that insurer could not respond to demand letter for MRI bill because letter failed to state correct statutory amount allowable for MRI procedures is denied where it is undisputed that insurer denied MRI claim based on peer review opining that MRI was not reasonable or medically necessary and charges appeared excessive
BEACHES OPEN MRI, (as assignee of John Ewing), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2005-SC-7068, Division CC-O. January 26, 2006. Ronald P. Higbee, Judge. Counsel: Glenn S. Banner. Kelly B. Hampton, The Gallagher Law Firm, Jacksonville.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY DISPOSITION
This cause came before the court on December 16, 2005, on the defendant’s Motion for Final Summary Disposition. The facts are not in dispute. John Ewing (Ewing), the insured, suffered personal injuries related to a motor vehicle accident on January 15, 2005. At the time of the motor vehicle accident, Progressive Express Insurance Company (Progressive) provided coverage, including personal injury protection (PIP) benefits. Ewing came under the care of Dr. Cullen, who recommended a lumbar and thoracic MRI’s which were performed at Beaches Open MRI (Beaches). Beaches performed the lumbar and thoracic MRI’s and timely billed Progressive $2,420.00 for each procedure.
Progressive responded with an “explanation of benefits” form (EOB), which indicated that Progressive received the Beaches’ MRI bill on February 3, 2005. The record is unclear as to what investigations Progressive undertook; however, a March 31, 2005, peer review by Dr. Jeff Roskein, D.C., is part of the record. Progressive hired Dr. Roskein to perform “peer review” based on the medical records to determine, among other issues, whether the Beaches MRI’s performed on Ewing were medically necessary. Dr. Roskein’s report states he was asked to “review the records and determine if the x-ray interpretation from Spinal Imaging, Inc., performed on January 31, 2005, and the MRI’s order and performed on January 25 and January 26 were reasonable, medically necessary and related to the motor vehicle accident of January 15, 2005”.
Dr. Roskein opined that the MRI tests were not reasonable or medically necessary. Dr. Roskein also added in his opinion that, “. . .the fee ($2,420.00) charged for these exams seems excessive”.
Progressive denied payment stating the “charges denied per IME physician”. No other reason was given for the denial. On August 2, 2005, Beaches sent a “demand letter” to Progressive pursuant to Florida Statute Section 627.736(11) requesting payment for the two procedures plus the statutory interest and penalty. Attached to the demand letter were the two Progressive EBO’s which included CPT codes for the procedures and the $2,420.00 charge for each procedure. Progressive was put on notice as to the amount by the attachments to the plaintiff’s demand letter. Progressive timely responded on August 11, 2005, and stated that Progressive would be defending the denial of the MRI billing based on the IME Chiropractor review which determined the tests were not medically reasonable, related or necessary. Plaintiff filed suit on September 19, 2005.
On October 24, 2005, the defendant moved for summary disposition. Progressive, for the first time, raised the defense that Progressive could not respond to the demand letter since Beaches failed to state the correct statutory amount allowable for the MRI procedures.
Florida Statute Section 627.736(5) provides:
5. Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 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, adjudged 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 for the 12-month period ending June 30 of that year, except that 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 of Ambulatory HealthCare, the American College of Radiology, of the Joint Commission on Accreditation of Healthcare Organizations 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 for the 12-month period ending June 30 of that year. 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.
Progressive requests this court to approve Progressive’s decision to refuse MRI payment to Beaches because Beaches billed an amount that Progressive believes exceeds the statutory limit. It is undisputed that Progressive denied payment based on the peer review, not because Progressive was unable to correctly calculate the MRI reimbursement rate pursuant to the statute. To allow Progressive to deny payment because the amount charged seems “excessive” would render the PIP no fault plan into a no pay plan. This court is well aware that medical providers are in the business of providing medical services and typically billing all patients the same amount. Automobile insurance policies, much like HMO and PPO policies, may contain a fee schedule as to what the insurer will pay for certain medical procedures. It is up to the medical provider to bill a reasonable amount and it is the insurer’s responsibility to pay at the contracted amount. To allow an insurer to escape payment because an amount billed is deemed “excessive” would make the PIP no fault scheme into a “no pay scheme”.
In Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000), the Florida Supreme Court held that:
The statutory language is clear and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of an application of benefits. There is no provision in the statute to toll this limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted “no fault” insurance statute a “no pay” plan — a result we are sure was not intended by the legislature.
To accept the theory advanced by Progressive, that is, if the medical provider bills an amount Progressive believes is excessive, then no reimbursement is allowed, is to completely ignore the stated purpose of PIP legislation, which is, “. . .the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey at 684.
In the instant case, Progressive is well aware of the formula to determine the proper reimbursement for Florida PIP MRI charges. Progressive had already made the decision to deny the claim based on a peer review and stated so in the response to Beaches’ demand letter.
In consideration thereof, it is ADJUDGED that the defendant’s Motion for Summary Disposition is denied.
