13 Fla. L. Weekly Supp. 625a

Insurance — Personal injury protection — Coverage — Medical expenses — Needle electromyography — Reasonable charge — Section 627.736 does not require insurer to pay for needle EMG pursuant to mandatory fee schedule — Partial summary judgment is granted in favor of medical provider as to balance of reduced bill for needle EMG — Record, including medical provider’s affidavit made from personal knowledge, establishes prima facie case for summary judgment — Affidavit of physician who performed peer review is improper and inadmissible due to fact that physician did not perform physical examination of insured, affidavit relies on hearsay and is conclusory, and affidavit refers to peer review not attached to affidavit — Affidavit of insurer’s litigation specialist indicates bill for needle EMG was reduced based on Medicare fee schedule, which is not federal or state medical fee schedule applicable to automobile and other insurance coverage that may be considered to determine reasonableness of charge pursuant to section 627.736(5)(a)

REVERSED and REMANDED at 15 Fla. L. Weekly Supp. 28bGARY H. DiBLASIO, MD, PA, (Holland, Mark), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2005-SC-007324 SB RD. March 30, 2006. Debra M. Stephens, Judge. Counsel: Harley N. Kane & Glenn E. Siegel, Greenspan, Kane, Kane & Kane, P.A., Boca Raton. Tammy B. Denbo, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa.

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING CPT CODE 95861

This action was heard on February 8, 2006 on Plaintiff’s Motion for Partial Summary Judgment Regarding CPT Code 95861. Both sides were well represented by counsel and the Court being duly advised and having considered the evidence and argument finds as follows:

This case presents the following issues: (1) Does F.S. §627.736 require an insurer to pay a needle EMG test (CPT procedure code 95861) pursuant to any fee schedule provided by subsection 5(b)(3) or 5(b)(4) of that statute? and (2) If not, may an insurer rely on the Federal Medicare reimbursement fee schedule to determine a reasonable reimbursement amount? The Court finds the answer to both issues is no.

In reaching its conclusion the Court was presented and considered the documents contained in the Court file including but not limited to the affidavits of Gary H. DiBlasio, M.D., Michael Zeide, M.D.¹, the Defendant’s adjuster — Michelle Buck, F.S. §627.736, pertinent portions of its legislative history, and the pleadings and discovery materials contained in the Court file. In 2001 Florida Statute §627.636 was amended by CS/CS/SB 1092 to add five additional diagnostic tests subjected to fee schedules. Those five diagnostic tests² are spinal ultrasounds, extremity ultrasounds, video fluoroscopy, surface electromyography, and nerve conduction testing. The amendment relating to nerve conduction studies is contained in F.S. §627.736(5)(b)3 and (5)(b)(4)³. The diagnostic testing at issue in this matter (needle electromyography) is not subject to a mandatory fee schedule. It is merely mentioned in subsection (b)(3) as a way to differentiate the reimbursement schedule of nerve conduction studies into two categories: Category 1 nerve conductions studies — those performed by certain qualified medical doctors which will be reimbursed at 200% of the 2001 Medicare Part B schedule, and Category 2 nerve conduction studies — those performed by doctors who do not satisfy the criteria under Category 1 which will be reimbursed at the Florida Workers Compensation schedule. Indeed, at the hearing in this matter Progressive did not argue that needle emg’s are not subject to a mandatory fee schedule, but rather shifted their argument to language contained in subsection (5)(a) of the statute.

The parties agree Holl v. Talcott, 191 So.2d 40 (Fla. 1966) holds that the moving party bears the initial burden of proving there is no genuine issue of material fact and to establish its prima facie case for summary judgment and once that is met the burden shifts to the non-moving party to come forth with admissible evidence to show a question of material fact exists. Here the plaintiff has met its burden with the pleadings and the affidavit of Dr. DiBlasio.

Affidavit of Dr. DiBlasio

In support of its motion, the plaintiff filed the affidavit of Dr. DiBlasio. In his affidavit Dr. DiBlasio goes into great detail regarding his standing to bring the lawsuit, his treatment of his patient/Progressive’s insured including the issues of reasonableness, relatedness, and medical necessity. Progressive argued that Dr. DiBlasio’s affidavit is insufficient and Plaintiff has therefore not met its burden, thus Defendant need not offer any evidence. Progressive argued that Plaintiff’s affidavit was inadmissible essentially because it is “self-serving, subjective and doesn’t prove the charges are reasonable” citing Florida Rule of Civil Procedure 1.510(e), Progressive Express Insurance Company v. Physical Medicine Center, Inc., (a/a/o Leslie Herbert), Hillsborough Circuit Court (Appellate Division), Case No. 04-11631, Frasher v. Fox Distributing of SW Florida, Inc., 813 So.2d 1017 (Fla. 2nd DCA 2002) and Taylor v. Liberty Mutual Insurance Company, 281 So.2d 920 (Fla. 2nd DCA 1973). These decisions do not have any impact on the validity of Dr. DiBlasio’s affidavit. Frasher holds that “an affidavit . . . must not be based on hearsay or the plaintiff’s subjective beliefs, but must be based on the plaintiff’s personal knowledge of the defendant’s actions.” Frasher at 1020. The court finds Dr. DiBlasio’s affidavit does not contain any hearsay or subjective beliefs, and is based on his personal knowledge. Taylor is a short Per Curiam decision finding that the conclusion “the subject accident was caused by the driver of the car in which the plaintiff was riding” was insufficient to grant summary judgment. The court finds no analogous statement in Dr. DiBlasio’s affidavit and finds Taylor to be of little guidance here. The Court finds Dr. DiBlasio’s affidavit is valid and acceptable. The Court finds that the record, including Dr. DiBlasio’s affidavit, establishes a prima facie case for partial summary judgment regarding CPT code 95861 and therefore the burden to show a question of material fact has shifted to the defendant. In opposition to the plaintiff’s motion the Defendant filed the affidavits of Michael Zeide, M.D., its adjuster Michelle Buck and also relied upon Defendant’s responses to Plaintiff’s Request for Admissions and Verified Responses to interrogatories.

Affidavit of Dr. Zeide

Dr. Zeide’s affidavit is a short document that indicates that Dr. Zeide is an orthopedic surgeon who practices at the Orthopedic Center of Palm Beach County, in Palm Beach County, where CPT code 95861 (Needle EMG) is routinely billed and performed. Dr. Zeide’s affidavit stated that he “performed a peer review” which “included, but was not limited to, a review of the medical records and billing submitted by Gary H. DiBlasio, M.D. for date of service March 18, 2005 regarding Mark Holland.”⁴ Dr. Zeide concluded that “based upon my evaluation of the medical and billing records pertaining to Mark Holland and my years of experience practicing as a board certified orthopedic surgeon, that in considering the location and date of service of March 18, 2005, the $600.00 charge for CPT Code 95861 was not reasonable”. Dr. Zeide offers no basis or other support for his conclusion. The plaintiff argues that Dr. Zeide’s affidavit is inadmissible and should be struck for three separate reasons. The plaintiff argue that (1) F.S. §627.736(7)(a) precludes it, (2) the rational in Frasher v. Fox Distributing precludes it, and (3) the rational in McElroy v. Perry, precludes it.

First, the plaintiff points to F.S. §627.736(7) which states in pertinent part:

An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.

Plaintiff contends that since Dr. Zeide did not perform a physical examination of the patient, his “peer review” report is not a valid report as required by the subsection (7) of the statute. Plaintiff argued that such “paper reviews” have long been a controversial issue in Florida. In 2000, the 4th DCA decided Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 768 So.2d 229 (Fla. 4th DCA 2000), which held that a Physician’s report stating that treatment was medically unnecessary could be based on a review of medical records without a physical examination and justified a refusal to pay personal injury protection (PIP) benefits to a medical provider. After that decision the “valid report” language was added to the PIP statute in 2001 as part of the amendment contained in CS/CS/SB 1092. Prior to the amendment the “valid report” language did not exist. The plaintiff points out that after the Nationwide decision made “paper reviews” valid the legislature would have no reason to change the language of the statute except to outlaw such reviews. In support of that interpretation, the plaintiff cites Eduardo J. Garrido, D.C., P.A. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 970a (11th Jud. Cir. July 12th, 2005) as persuasive authority. In Garrido the court held:

Plaintiff’s argument with regard to the invalidity of Dr. Fleischer’s report is supported by the plain meaning of the statute. Section 627.736(7)(a), Florida Statutes, (2001) defines a valid report as “one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” Id. (emphasis added) The legislature’s prerogative to use the term “and” instead of “or” before the phrase “is factually supported by the examination” is significant for the term is defined by the dictionary as “[t]ogether with or along with; also; in addition; as well as.” American Heritage Dictionary, 49 (1976) (emphasis added). . . The plain meaning of “and” clarifies that the legislature intended that a medical records review must be supported by the examination findings from the IME physician.

Garrido.

Furthermore, in reading Florida Statute §627.736(4) and (7)(a) in pari materia, Plaintiff contends that pursuant to Garrido in that “[w]hen read as a whole, §627.736 is unsupportive of the proposition that an insurer may contest reasonable, necessary and related with a countervailing medical opinion produced at any time.” Garrido at 974. Plaintiff further contends that when, as in this case, the insurer only relies upon a physician’s countervailing opinion as reasonable proof under §627.736(4) as a means to dispute the medical necessity and relatedness of the Plaintiff’s medical services performed, such evidence and reasonable proof must comply with §627.736(7); otherwise, §627.736(7) would be without meaning.

Plaintiff contends that since Dr. Zeide’s “peer review” report is not valid, his affidavit based upon his “peer review” is also is invalid and cannot be presented as contrary evidence here.

Defendant argued that Dr. Zeide did not have to physically examine Mark Holland for his peer review to be admissible. Defendant asserted that Florida Statute §627.736(7)(a) references the withdrawal of payment to a treating physician based upon the examination of the patient by an independent physician (IME). Defendant pointed out that Progressive did not withdraw payment for CPT Code 95861, but instead paid the rate it determined was reasonable for the service and after it made this claims decision, Progressive requested Dr. Zeide to perform a peer review regarding this CPT Code. Progressive further pointed out that Florida Statute §627.736(7)(a) does not prohibit peer reviews after initial claims decisions are made. Florida Statute §627.736(4)(b) allows for an insurer to assert the charge was unreasonable at any time, even after the payment of the claim. Thus, Defendant argued that Dr. Zeide’s affidavit is admissible.

Plaintiff’s second argument why Dr. Zeide’s affidavit is inadmissible relies on Frasher v. Fox Distributing of SW Florida, Inc., 813 So.2d 1017 (Fla. 2nd DCA 2002). There, the 2nd DCA held that “[a]n affidavit that relies on either hearsay or the plaintiff’s conclusory allegations as to the defendant’s actions or intentions is insufficient as a matter of law.” Here plaintiff claims both that Dr. Zeide’s affidavit relies on hearsay and his ultimate conclusion is merely a conclusory allegation of the Dr. Diblasio’s action. Plaintiff further contends that Dr. Zeide’s affidavit relies on a “peer review” which is not attached and is therefore hearsay and merely reaches the conclusion that “the $600.00 charge for CPT Code 95861 was not reasonable” and that this is precisely such a conclusory allegation of Dr. Diblasio’s charge.

In opposition to Plaintiff’s second argument, Defendant contended that Dr. Zeide’s affidavit was not conclusory, as it was a sworn statement of his expert opinion that the charge was not reasonable. Relying on the Progressive v. Physical Medicine Center Inc. (a/a/o Leslie Herbert) case cited above, Defendant asserted that with evidence that the Plaintiff’s charge is not reasonable, Defendant created a genuine issue of material fact and did not need to prove what charge would be reasonable.

Plaintiff’s third argument draws an analogy from McElroy v. Perry, 753 So.2d 121 (Fla. 2nd DCA 2000). Plaintiff argues that there is a double hearsay problem in admitting Dr. Ziede’s report. Under McElroy “an IME report prepared for the purpose of litigation lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the business records exception.” Here, Dr. Zeide’s affidavit refers to the “peer review” report but does not attach it to the affidavit. Plaintiff argued that a party cannot get around its hearsay problems by merely referring to its inadmissible report upon which it relies rather than actually attaching it. Based on these three arguments of the Plaintiff, this Court finds that Dr. Zeide’s affidavit is improper and inadmissible.

Affidavit of Michelle Buck

Progressive also filed the affidavit of Michelle Buck, its litigation specialist. Ms. Buck’s affidavit is based upon her review of the documents contained in Progressive’s claim file. Ms. Buck’s affidavit stated “Progressive utilized a method, in accordance with Florida Statutes, that determined the $600.00 charged by Plaintiff for CPT Code 95861 was not reasonable based upon the area where the service was provided, as well as the date of service.” During the hearing, this court noted that “Michelle Buck’s affidavit does establish a question of fact because it says Progressive utilized a method in accordance with the Florida Statutes . . .”

Plaintiff argued that the pertinent document at issue here is the Explanation of Benefits created by Progressive and dated 05/05/2005. That document was attached to plaintiff’s motion for summary judgment and presented to the court at the hearing (without objection). That document indicates the adjuster as LISCHALK, ALAN. The explanation lists Dr. DiBlasio charge of $600.00 for the needle EMG and states that Progressive would allow $280.49 for this service and gives reason Code “X248”. It further indicates that “X248” means “The Florida allowed amount for this procedure is based upon the 2001 Medicare Part B schedule for the region in which the services were rendered. The allowed amount has been calculated in accordance with CH. 2001-271 SB 1092”. Plaintiff contends the statutory amendment of 2001 does not create a mandatory fee schedule for Needle EMG’s. Progressive counters with language contained in subsection (5)(a) in support of its decision to reduce Dr. DiBlasio charge pursuant to the Medicare fee schedule. F.S. §627.736(5)(a) states:

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 the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered . . . With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

Since the Court has found that Dr. DiBlasio has met his burden under Holl v. Talcott and the burden to come forth with admissible evidence has shifted to Progressive, Progressive must now present such evidence. The only evidence that is contained in the affidavit of Michelle Buck is that Progressive utilized a method in accordance with Florida Statutes to determine the charge by Plaintiff was not reasonable based upon the area where the service was provided and the date of service.

That statute allows consideration of evidence of five categories of information: (1) usual and customary charges. (Progressive has supplied no evidence of usual and customary charges); (2) payments accepted by the provider involved in the dispute. (Progressive has supplied no evidence of payments accepted by Dr. Diblasio); (3) reimbursement levels in the community. (Progressive has supplied no evidence of reimbursement levels in the community); (4) federal and state medical fee schedules applicable to automobile and other insurance coverages and (5) other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. Here, Progressive relies upon the medicare fee schedule; however, the medicare fee schedule is not one of those categories considered by the statute. Plaintiff contends that Medicare is not an automobile program and it is not insurance, as Medicare is a federal entitlement program available to members of our society who qualify.

Progressive contended that its responses to Plaintiff’s Request for Admissions and Verified Responses to Interrogatories also create a genuine issue of material fact. In support of this, Progressive argued that Florida Rule of Civil Procedure 1.510(c) states that a motion for summary judgment can be entered if “the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show there is no genuine issue as to any material fact”. Progressive further argued that the reasonableness of a charge is a question of fact for the jury and relied on Derius v. Allstate Indemnity Company, 723 So.2d 271, 274 (Fla. 4th DCA 1998); Graham v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 75a (Duval County, Oct. 20, 2004); and Florestal (a/a/o Harper) v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 689c (Orange County, March 23, 2005).

After considering all of the pleadings, case law and argument by counsel, this court finds that Medicare is not a federal medical fee schedule applicable to automobile and other insurance coverages. As such, since the Plaintiff met his burden to create a prima facie case for no-fault benefits, Gary H. DiBlasio, M.D., P.A. is entitled to partial summary judgment regarding the needle EMG performed on March 18, 2004 to Mark Holland. Gary H. DiBlasio, M.D., P.A. shall recover from the Defendant $600.00 at 80% = $480.00 less payment previously made by Progressive for CPT code 98561 in the amount of $224.39, for a total amount due of $255.61, plus statutory interest. The Court reserves jurisdiction to entertain a motion for fees and costs and anything else necessary to effectuate this ruling.

__________________

¹After argument of counsel the affidavit of Dr. Zeide was stricken as not proper and therefore excluded from evidence and consideration in this motion for summary judgment.

²F.S. §627.736(2) provides: (2) Charges for medically necessary cephalic thermograms, peripheral thermograms, spinal ultrasounds, extremity ultrasounds, video fluoroscopy, and surface electromyography shall not exceed the maximum reimbursement allowance for such procedures as set forth in the applicable fee schedule or other payment methodology established pursuant to s. 440.13.

³F.S. §627.736(5) provides: (5) Charges tor treatment of injured persons. —

(b)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 . . . shall not exceed 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001.

(b)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.

⁴Neither the Peer review report nor Dr. Diblasio’s records were attached to the affidavit.