14 Fla. L. Weekly Supp. 369a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Allowable amount — Adjustment to Consumer Price Index for All Urban Consumers in South Region — Final summary judgment is entered in favor of MRI providers in class action suit against insurer that failed to make full payment for MRI services in accordance with 2001 version of section 627.736(5)(b)5 or other pre-existing law where insurer does not dispute that it did not pay any CPI adjustments for MRI services provided to insureds during time period of November 1, 2001, through July 31, 2003
CLEARVIEW IMAGING, L.L.C. d/b/a CLEARVIEW OPEN MRI, asassignee of Judith A. Rivero, individually, and on behalf of all those similarly situated, Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 03-4174, Division C. August 15, 2006. James M. Barton, II, Judge. Counsel: J. Daniel Clark. David M. Caldevia. Scott Jeeves. Donald Blackwell.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 15, 2006 concerning the Motion for Final Summary Judgment filed by the Plaintiff, CLEARVIEW IMAGING, L.L.C. d/b/a CLEARVIEW OPEN MRI, as assignee of Judith A. Rivero, individually, and as the appointed class representative of all those similarly situated, against the Defendant, PROGRESSIVE CONSUMERS INSURANCE COMPANY (“Defendant”). The Court, having reviewed the motion, the parties’ memoranda of law, the pleadings, the discovery, the affidavits, and other evidence of record, as well as the arguments of counsel, and being otherwise fully advised in the premises, ORDERS AND ADJUDGES as follows:
1. This is a class action lawsuit involving the Defendant’s failure to make full payment for magnetic resonance imaging (“MRI”) services in accordance with Section 627.736(5)(b)5, Florida Statutes (2001) and/or otherwise applicable pre-existing Florida law.
2. As explained below, the record demonstrates that there is no genuine issue as to any material fact and that the Plaintiff is entitled to a judgment as a matter of law. Therefore, the Plaintiff’s motion for final summary judgment is hereby GRANTED.Applicable Statutes
3. Section 627.736(5)(b)5, Florida Statutes (2001) became effective on June 19, 2001, and states in pertinent past:
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 percent 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 percent 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 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 percent 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. . . . .
(emphasis added). The Plaintiff contends that as of November 1, 2001, this statute required PIP insurers to adjust the Medicare fee schedule for MRI’s “by an additional amount equal to the medical Consumer Price Index for Florida.”
4. On or about July 11, 2003, the Florida Legislature amended the 2001 version of Section 627.736(5)(b)5, as follows:
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 percent 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 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 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 insured for magnetic resonance imaging services provided in facilities accredited by the Accreditation Association for Ambulatory Health Care, the American College of Radiology or 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 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 asdefined in chapter 395 rendered by facilities licensed under chapter 395.
Ch. 2003-411, Laws ofFla.(2003) (underline and strike-through in original). Thus, among other things, the 2003 legislation substituted the term “medical Consumer Price Index fox Florida” with the term “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.”
5. Section 16(4) of Chapter 2003-411 states: “Subsection (5) of section 627.736, Florida Statutes, as amended by this act, shall apply to treatment and services occurring on or after October 1, 2003.” In this case, however, the Plaintiff’s claims are brought pursuant to the 2001 version of Section 627.736(5)(b)5, not the 2003 version. Irrespective of the effective date of the 2003 amendments, the 2001 version of the statute states on its face that MRI providers are entitled to annual adjustments pursuant to the “medical Consumer Price Index for Florida” “[b]eginning November 1, 2001.”
6. Moreover, the staff analysis associated with Chapter 2003-411 explains the 2003 amendment was intended to clarify the 2001 statute:
The bill clarifies that the allowable amounts for medically necessary nerve conduction tests, under specified conditions, will be under the ‘participating physician fee schedule’ of the Medicare Part B fee schedule and adjusted annually on August 1 to reflect the prior calendar year changes in the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics. The CPI provision also pertains to MRI services.
See Senate Staff Analysis and Economic Impact Statement for CS/SB 32-A (2003) (emphasis added). Thus, appellate courts have consistently held that the 2003 amendment was a legislative interpretation of the 2001 statute, rather than a substantive change, and as a result, MRI fees for years predating the 2003 amendment were also to be adjusted based on the Medical Care Item of the Consumer Price Index for the South Region. See, e.g., Clearview Imaging LLC v. State Farm Mut. Ins. Co., __So.2d__, 31 Fla. L. Weekly D1120, 2006 WL 1041821 (Fla. 2d DCA Apr. 21, 2006); Premier Open MRI, L.L.C. v. Progressive Express Ins. Co., 2005 WL 1077722 (Fla. 13th Cir. Ct. Apr. 18, 2005) [12 Fla. L. Weekly Supp. 715b]; Fair v. State Farm Mut. Auto. Ins. Co., 11 Fla. L. Weekly Supp. 863c (Fla. 7th Cir. Ct. July 15, 2004).
7. Further, asexplained in Premier Open MRI, L.L.C. v. Progressive Express Ins. Co., 2005 WL 1077722 (Fla.13th Cir. Ct. Apr. 18, 2005) [12 Fla. L. Weekly Supp. 715b], the Medical Care Item of the Consumer Price Index for the South Region is the only generally accepted Consumer Price Index applicable to medical services most specific to the entire State of Florida.Procedural History
8. The Plaintiff contends that the Defendant failed and/or refused to make full payment for MRI services in the full amount required by Section 627.736(5)(b)5, Florida Statutes (2001).
9. On the other hand, the Defendant contends, among other things, that no “medical Consumer Price Index for Florida” exists and, therefore, Section 627.736(5)(b)5, Florida Statutes (2001) is inoperative or otherwise invalid.
10. On December 18, 2003, this Court entered an order granting class certification. That order defined the Class as follows:
All [MRI] service providers within the State of Florida who the [Defendant] has failed and/or refused to make full payment for [MRI] services in an amount adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida as required by Section 627.736(5)(b)5 from November 1, 2001, through July 31, 2003.
11. The Defendant subsequently appealed the class certification order to the Florida Second District Court of Appeal. On October 27, 2004, the appellate court “per curiam affirmed” the class certification order. Progressive Consumers Ins. Co. v. Clearview Imaging, LLC, 895 So.2d 1076 (Fla. 2d DCA 2004).
12. On remand from the appellate court, the parties filed a series of motions for partial summary judgment, which were directed to the proper interpretation and legal affect of Section 627.736(5)(b)5, Florida Statutes (2001).
13. On February 13, 2006, this Court entered its “Order on the Parties’ Motions for Partial Summary Judgment.” This Order granted the Plaintiff’s motion for partial summary judgment and denied the Defendant’s motions for partial summary judgment. Among other things, the Order held:
2. The well settled controlling principles of statutory construction, aswell as the undisputed material facts, demonstrate as a matter of law that the “medical Consumer Price Index for Florida” provision of Section 627.736(5)(b)5, Florida Statutes (2001), refers to, and/or must be construed to mean, the Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the U.S. Department of Labor’s Bureau of Labor Statistics because, among other things, it is the only generally accepted Consumer Price Index applicable to medical services most specific to the entire State of Florida. See, e.g., Fair v. State Farm Mut. Auto. Ins. Co., 11 Fla. L. Weekly Supp. 863c (Fla. 7th Jud. Cir. Ct. [July 15, 2004]) (Volusia Circuit Court sitting in appellate capacity held “it would be absurd” to say § 627.736(5)(b)5, Fla. Stat. (2001) refers to a “nonexistent standard”); Premier Open MRI, LLC v. Progressive Express Ins. Co., Case No. 04-5919 (Fla. 13th Jud. Cir. Ct. April 18, 2005) (Slip Opinion) (Hillsborough Circuit Court sitting in appellate capacity held § 627.736(5)(b)5, Fla. Stat. (2001) refers to Medical Care item of the Consumer Price Index for South Region); Millenium Diagnostic Imaging Center, Inc. v. Security National Ins. Co., 882 So.2d 1027 (Fla. 3d DCA 2004) (2003 legislation amending § 627.736(5)(b)5 was intended to “clarify” 2001 version of statute and not enact a substantive change to 2001 version).
3. The plain language of the statute, as well as the controlling principles of statutory construction and the undisputed material facts, demonstrate as a matter of law that the “Beginning November 1, 2001” and “adjusted annually” provisions of Section 627.736(5)(b)5, Florida Statutes (2001) must be construed to mean that magnetic resonance imaging (“MRI”) providers are entitled to begin receiving the annual Consumer Price Index adjustment as of November 1, 2001, not November 1, 2002. Among other things, the Medicare fee schedule “for year 2001” referenced in Section 627.736(5)(b)5 was actually published on November 1, 2000. See, Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule for Calendar Year 2001; Final Rules, Fed Register, 65 FR 65376-01, 2000 WL 1624262 (Nov. 1, 2000). Congress requires that Medicare schedule to be established by “November 1 of the preceding year, for each year beginning with 1998”. See, 42 USC § 1395w-4(b)(1) and (d)(1)(E)(i) (emph. added). Moreover, the data used in the Medicare schedule was “determined on the basis of the best data available . . . as of September 1, 2000.” See, 42 USC § 1395w-4(f)(3)(A). In [other] words, the baseline price numbers were established in the year 2000. One cannot presume the November 1, 2001 date in §627.736(5)(b)5 and the November 1, 2000 publication date of the Medicare fee schedule are mere coincidences. Rather, it must be presumed the Legislature was aware of the federal laws governing the Medicare fee schedule when it identified November 1, 2001 asthe key date in Section 627.736(5)(b)5. See, Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14 (Fla. 1977) (presumption is that laws are passed based on legislature’s knowledge of prior existing statutes). Because the Medicare fee schedule “for year 2001” was based on information collected before September 1, 2000 and was published on November 1, 2000, it would be absurd and punitive to make MRI providers wait until November 1, 2002 to begin receiving an annual price adjustment. Because the November 1, 2001 date in Section 627.736(5)(b)5 falls precisely one year after the Medicare schedule wasadopted on November 1, 2000, it makes sense that the prices therein must be “adjusted annually” “[b]eginning on November 1, 2001,” not November 1, 2002. If the Insurance Company’s interpretation was intended, the Legislature could have easily stated that “[b]eginning November 1, 2001” MRI providers would receive the Medicare price, and would begin receiving an annual price adjustment “each year thereafter” as stated in other statutes of this nature. Compare, §766.105(2)(f), Fla. Stat. (“As of January 1, 1990, the minimum entry level amount shall be indexed to the medical component of the consumer price index and shall be adjusted by the fund each year thereafter accordingly”) (emph. added).
14. Thereafter, on April 5, 2006, the Defendant filed another motion for summary judgment, on grounds that the 2001 version of Section 627.736(5)(b)5 is unconstitutional. On May 8, 2006, this Court entered its “Order on Defendant’s Motion for Partial Summary Judgment Directed at the Alleged Unconstitutionality of Section 627.736(5)(b)5, Florida Statutes (2001).” This Order denied the Defendant’s Motion and held as follows:
1. The Court rejects the Defendant’s argument that Section 627.736(5)(b)5, Florida Statutes (2001) is rendered unconstitutional or otherwise invalid by the purported conflict between the “[b]eginning November 1, 2001” provision and the October 1, 2003 effective date of the 2003 amendment of the statute set forth in Section 16(4) of Chapter 2003-411, Laws of Florida (2003).
2. Consistent with this Court’s prior rulings in its “Order on Plaintiff and Defendant’s Motion for Partial Summary Judgment” dated August 4, 2005 and its “Order on Parties’ Motions for Partial Summary Judgment” dated February 13, 2006, as well as the appellate decision of Clearview Imaging, LLC v. State Farm Mut. Auto. Ins. Co., __So.2d__, 2006 WL 1041821 (Fla. 2d DCA April 21, 2006), the Defendant’s motion is hereby DENIED.
Undisputed Material Facts
15. Except in those instances referenced in the Affidavits of Defendant’s corporate representative Douglas Helton, filed in this action, the Defendant does not dispute that it did not pay any Consumer Price Index adjustments for MRI services provided to its PIP insureds during the time period of November 1, 2001 through July 31, 2003. Subject to the arguments set forth in its motions for partial summary judgment relating to the interpretation and constitutionality of Section 627.736(5)(b)5, Fla. Stat. (2001), the Defendant also does not dispute the evidence concerning the dates and types of MRI services rendered by the class members to the Defendant’s PIP insureds, or the amount of damages calculated by the Plaintiff using the Medical Care Item of the Consumer Price Index for the South Region. However, the Defendant continues to maintain its legal arguments regarding the interpretation and unconstitutionality of the 2001 version of Section 627.736(5)(b)5, all of which this Court previously has rejected.
16. Notwithstanding the Defendant’s legal arguments, this Court finds that the undisputed material facts demonstrate, as a matter of law, as follows:
(a) The Plaintiff and each class member is an assignee of one or more persons insured by the Defendant by automobile insurance policies, which provided PIP benefits and/or medical payments coverage as required by Sections 627.730 through 627.745, Florida Statutes.
(b) The Plaintiff and each class member provided MRI services to the Defendant’s insureds during the class claims period of November 1, 2001 through July 31, 2003.
(c) The Plaintiff and each class member received written assignments of benefits from the Defendant’s insureds, and subsequently submitted claim forms seeking payment from the Defendant. In each instance, except for those instances referenced in the Affidavits of Defendant’s corporate representative Douglas Helton, filed in this action, the Defendant’s payment to the Plaintiff and the respective class member was solely based upon the fee indicated by the 2001 Medicare Part B participating physician fee schedule, excluding any Consumer Price Index adjustment. In each instance, the Defendant’s explanation of benefits form included a substantially identical “explanation code” accompanying its reduced payment, which stated:
The Florida allowed amount for this procedure is based upon the 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 S.B. 1092.
The Defendant’s citation to “Ch. 2001-271 S.B. 1092” referred to Chapter 2001-271, Laws of Florida (2001) and Senate Bill 1092, which enacted Section 627.736(5)(b)5, Florida Statutes (2001).
(d)As explained in this Court’s February 13, 2006 “Order on the Parties’ Motions for Partial Summary Judgment,” at all material times, the Medical Care Item of the Consumer Price Index for the South Region was the only generally accepted Consumer Price Index applicable to medical services most specific to the entire State of Florida.
(e) The Defendant violated Section 627.736(5)(b)5, Florida Statutes (2001) by failing or refusing to pay any Consumer Price Index adjustment to the Plaintiff and the class members for MRI services rendered to the Defendant’s insureds during the time period November 1, 2001 through July 31, 2003, and as a direct and proximate result, the Plaintiff and the class members incurred damages.
(f) The parties have identified the date and type of MRI services provided to the Defendant’s insureds by the Plaintiff and the class members, and the amounts paid by the Defendant for those MRI services, and has calculated the amount of underpayments indicated by the Medical Care Item of the Consumer Price Index for the South Region, together with pre-judgment interest, as being the total sum of $56,882.43. See, Affidavit of Anya Verkhovskaya-Cohen, Senior Vice President of AB Data, Ltd., dated June 30, 2006, and Ms. Verkhovskaya-Cohen’s Supplemental Affidavit, dated July 26, 2006; Affidavit of the Defendant’s corporate representative, Douglas Helton, dated June 26, 2006. See also Affidavit of G. Hartley Mellish, dated July 26, 2006. Subject to the arguments set forth in its motions for partial summary judgment relating to the interpretation and constitutionality of Section 627.736(5)(b)5, Florida Statutes (2001), the Defendant does not contest the Plaintiff’s calculations of damages and interest.
17. Even if Section 627.736(5)(b)5, Florida Statutes (2001) were unconstitutional, as the Defendant contends, this Court notes that the Defendant does not contend, and has not presented any evidence demonstrating, that any MRI fee derived from the statutory methodology set forth in that statute (i.e., 175% or 200% of the 2001 Medicare fee schedule amount, plus an adjustment pursuant to the Medical Care Item of the Consumer Price Index for the South Region) would result in a fee that exceeds the reasonable and customary amount that would otherwise be payable to MRI providers absent that statutory methodology. To the contrary, the undisputed affidavit of the Defendant’s Florida Medical Claims Manager, Douglas Helton, demonstrates that the Defendant utilized that statutory formula in paying for MRI services rendered to its PIP insureds as of August 1, 2003. See Affidavit of Douglas Helton dated September 30, 2004; Deposition of Douglas Helton dated August 24, 2004.Conclusion
18. The Plaintiff’s Motion For Final Summary Judgment is hereby GRANTED.
19. Accordingly, the Defendant, PROGRESSIVE CONSUMERS INSURANCE COMPANY, shall be liable to the Plaintiff and the Class for the total sum of $56,882.43, as of July 6, 2006, plus post-judgment interest at the statutory rate.
20. The Court reserves jurisdiction to enter a final judgment and to preside over all matters relating to the administration, implementation, effectuation, and enforcement of the judgment, including, without limitation, overseeing further notice and disbursement of funds to the Class through the appointed Class Administrator, AB Data, Ltd.
21. The Court also reserves jurisdiction to determine the Plaintiff’s claims for reasonable attorneys’ fees and costs, and for serving asa class representative, and over any issues regarding any rights or remedies that the Plaintiff and/or the Class may seek to assert pursuant to Section 624.155, Florida Statutes. Any motion for leave to assert such rights or remedies must be filed within ninety (90) days.
