15 Fla. L. Weekly Supp. 182a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Allowable amount — Adjustment to Consumer Price Index for All Urban Consumers in South Region — Calculation — CPI calculation must be made annually and cumulatively, reflecting combined prior years’ increases from 2001 through August 1 of year MRI was performed — Correct CPI adjustment calculation reveals insurer paid medical provider less than allowable amount for MRIs
MRI ASSOCIATES of ST. PETE d/b/a SAINT PETE MRI (assignee of Patricia Steele), Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 06-27599. Division K. November 27, 2007. Cheryl K. Thomas, Judge. Counsel: David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiff. Lorca Divale. Scott R. Jeeves. Douglas G. Brehm. Troy McRitchie.
FINAL SUMMARY JUDGMENT
THIS CAUSE came before this Court on November 8, 2007 concerning: (1) the Motion for Summary Judgment filed by Plaintiff MRI Associates of St. Pete, d/b/a Saint Pete MRI, a/a/o Patricia Steele; (2) the Motion for Summary Judgment filed by Defendant Allstate Indemnity Company; and (3) Plaintiff’s Objection and Motion to Strike Inadmissible Evidence Cited in Defendant’s Motion for Summary Judgment. The Court, after reviewing and considering the motions, memoranda of law, the pleadings, the parties’ Joint Stipulation of Facts, affidavits and discovery materials of record, and other materials as would be admissible in evidence on file, as well as the arguments of counsel, and being fully advised in the premises,
ORDERED AND ADJUDGED as follows:
1. For the reasons expressed herein, the Court finds that there is no genuine issue of material fact, and that the Plaintiff is entitled to a judgment as a matter of law. Accordingly, the Plaintiff’s Motion for Summary Judgment is hereby GRANTED, and the Defendant’s Motion for Summary Judgment is hereby DENIED. Moreover, the objections raised by Plaintiff’s Objection and Motion to Strike Inadmissible Evidence Cited in Defendant’s Motion for Summary Judgment are hereby SUSTAINED.1
2. The Plaintiff has filed a two-count Second Amended Complaint. Count I is a claim for unpaid Personal Injury Protection (“PIP”) benefits, and Count II is a claim for declaratory judgment concerning the parties’ rights and obligations under Section 627.736(5)(b)5, Florida Statutes.
3. The parties agree that there is no genuine issue as to any material fact, and filed a Joint Stipulation of Facts dated April 19, 2007. Among other things, the parties have stipulated that Patricia Steele held an insurance policy with Defendant which was in full force and effect at the time she was involved in an automobile accident in which she sustained injuries. The parties also stipulated that on July 19, 2006, the Plaintiff performed reasonable, necessary, and related magnetic resonance imaging (“MRI”) services for Ms. Steele in the form of two MRIs, that Ms. Steele assigned her rights and benefits under the subject policy to the Plaintiff, and that the Plaintiff timely submitted to Defendant its bill for services rendered in the amounts $1,225.99 for the first MRI and $1,323.10 for the second MRI, for total charges of $2,549.09. The Defendant paid $1,211.99 for the first MRI and $1,307.98 for the second MRI, or a total of $2,519.97. As a result, the Plaintiff seeks damages of $29.12, plus interest and attorneys’ fees and costs.
4. Effective as of June 19, 2001, the amount of PIP benefits recoverable for MRI services has been governed by the method for calculating MRI fees set forth in Section 627.736(5)(b)5, Florida Statutes (2001-2006). See, Ch. 2001-271, Laws of Fla. (2001); Clearview Imaging, LLC v. State Farm Mutual Auto. Ins. Co., 932 So.2d 423, 424 (Fla. 2d DCA 2006). The parties’ only disagreement in this case involves the proper interpretation and application of that statutory method.
5. After it was originally adopted in 2001, Section 627.736(5)(b)5 was amended in 2003 and in 2005. See, Ch. 2003-411, §8, Laws of Fla. (2003); Ch. 2005-2, §121, Laws of Fla. (2005). Because the MRI services in question were performed on July 19, 2006, the 2006 version of Section 627.736(5)(b)5 controls this case. Nonetheless, a review of the different versions of this statute is appropriate to correctly interpret the statute. See, Clearview Imaging, 932 So.2d at 426 (noting that the 2003 amendment of Section 627.736(5)(b)5 “clarified the original legislative intent”).
6. As originally adopted in 2001, Section 627.736(5)(b)5, Florida Statutes (2001) states the following:
Effective upon this act becoming a law [i.e., June 19, 2001] 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. 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.
(Emph. added).
7. It is indisputable that the “Medicare Part B” fee schedule “for year 2001” referenced in Section 627.736(5)(b)5 was published on or about 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 “[b]efore November 1 of the preceding year, for each year beginning with 1998”. See, 42 USC § 1395w-4(b)(1) and (d)(1)(E)(i). Moreover, the data used in the “Medicare Part B” fee schedule “for year 2001” 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 “Medicare Part B” fee schedule “for year 2001” was adopted in 2000 and is based on data collected before September 1, 2000. Notably, Section 627.736(5)(b)5 states that the Consumer Price Index adjustments may be charged by MRI providers “[b]eginning November 1, 2001” and that date is precisely one year after the “Medicare Part B” fee schedule “for year 2001” was adopted on November 1, 2000.
8. Section 627.736(5)(b)5 was subsequently amended in 2003. See, Ch. 2003-411, Laws of Fla. (2003). On or about July 11, 2003, §627.736(5)(b)5 was amended 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 ofMedicare 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 as defined in chapter 395 rendered by facilities licensed under chapter 395.
Ch. 2003-411, Laws of Fla. (2003) (underline and strike-through in original).
9. Chapter 2003-411, Laws of Florida (2003), §14, specifies that the amendment to §627.736(5)(b)5 applies “to treatment and services occurring on or after October 1, 2003.” The parties in this case do not dispute that the MRI services in this case were provided after October 1, 2003. As such, the 2001-2002 version of Section 627.736(5)(b)5 are inapplicable here.
10. Effective as of April 5, 2005, the Florida Legislature again amended Section 627.736(5)(b)5, as part of a “Reviser Bill,” which states the following:
Section 121. Subparagraph 5. of paragraph (b) of subsection (5) of section 627.736, Florida Statutes, is amended to read:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
5. 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, 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. 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.
Reviser’s note. — Amended to delete an obsolete provision limiting charges to personal injury insurers and insureds for magnetic resonance imaging to 200 percent of the allowable amount under Medicare Part B until November 1, 2001.
See, Ch. 2005-2, §121, Laws of Fla. (2005) (strike-through in original). It is well settled (and the parties here agree) that amendments made pursuant to reviser’s bills are editorial in nature and not intended to make substantive changes to law without express legislative action. See, e.g., Jones v. Christina, 184 So.2d 181, 184 (Fla. 1966). Consequently, the 2003-2006 versions of Section 627.736(5)(b)5 must be given the same interpretation.
11. Section 627.735(5)(b)5, Florida Statutes (2003-2006) establishes a two-step methodology. First, the 2001 Medicare Part B fee schedule amount is increased by 175% for non-accredited MRI providers, or 200% for accredited MRI providers. Second, that baseline amount is to be adjusted annually by the appropriate numerical factors published in the applicable Consumer Price Index.
12. In this case, it is undisputed that the Plaintiff is accredited, and is therefore, entitled to receive a baseline fee of 200% of the amounts set forth in the 2001 Medicare Part B fee schedule. The parties’ dispute is over which particular Consumer Price Index adjustment factors must be applied to that baseline fee.
13. The Court concludes that the first Consumer Price Index adjustment must be made on August 1, 2001, and adjusted annually on August 1 of each subsequent year through the date of treatment. This interpretation gives effect to the legislative intent inherent in the portion of Section 627.736(5)(b)5 which states that the charges will be “adjusted annually on August 1 to reflect the prior calendar year’s changes. . . .” See, AFO Imaging, Inc. v. Horace Mann Insurance Co., 14 Fla. L. Weekly Supp. 788b, ¶9 (Hillsborough Cnty. Ct. January 8, 2007).
14. The Court rejects the Defendant’s argument that the first Consumer Price Index adjustment should be applied as of November 1, 2002. The 2001-2004 versions of the statute unambiguously state that the adjustment methodology to MRI services rendered “[b]eginning November 1, 2001,” and the 2005 “Reviser Bill” cannot be interpreted to effect any substantive changes. See, Jones, 184 So.2d at 184. Consequently, the 2003-2006 versions of Section 627.736(5)(b)5 must be given the same interpretation. Moreover, as previously noted, the November 1, 2001 date expressly identified in the statute as the “[b]eginning” date, is precisely one year after the November 1, 2000 publication date of the 2001 Medicare Part B fee schedule, and that fee schedule is based on information collected before September 1, 2000. See, Medicare Program, Revisions to Payment Policies Under the Physician Fee Schedule for Calendar Year 2001, Final Rules, Fed. Register 65 F.R. 65376-01, 2000 WL 1624262 (Nov. 1, 2000); 42 USC § l395w-4(b)(1) and (d)(1)(E)(i); 42 USC § 1395w-4(f)(3)(A). Because the applicable Medicare fee schedule was based on information collected before September 1, 2000, and was published on or about November 1, 2000, it would be absurd and punitive to make MRI providers wait more than 2 years, until November 1, 2002, to begin receiving an “annual” Consumer Price Index adjustment. See, Clearview Imaging, LLC v. Progressive Consumers Insurance Company, 14 Fla. L. Weekly Supp. 372a (13th Jud. Cir. Ct. February 13, 2006).
15. The next issue is which annual adjustment factors must be applied. The Court hereby finds that the applicable Consumer Price Index adjustment factor is the number published for the 12-month period ending June 30 of each year since 2001. As explained in the uncontradicted affidavit and report of the Plaintiff’s expert economist, G. Hartley Mellish, Ph.D., “on a monthly basis, the Bureau of Labor Statistics publishes annual percent changes representing the change in prices for the actual 12-month period preceding each given month.” Dr. Mellish also stated that the adjustment factor for “the 12-month period ending June 30” is typically published each year sometime during the third week of July, which means that adjustment factor will always be available to the public by the “August 1” date specifically identified in the statute. Thus, the Court’s interpretation is consistent with the plain language of Section 627.736(5)(b)5, which provides that the baseline allowable amount is to be:
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.
(Emph. added).
16. The Court rejects the Defendant’s argument that the statute contemplates that the “annual average” adjustment factor published in January of each year should be used. Dr. Mellish’s unrebutted affidavit confirms that the annual average factor identified by the Defendant applies to the 12-month period of January 1st through December 31st, not “the 12-month period ending June 30” expressly identified in Section 627.736(5)(b)5.
17. Once the baseline amount is determined (i.e., 175% or 200% of the 2001 Medicare fee schedule amount), Dr. Mellish’s unrebutted affidavits and report identify the proper Consumer Price Index adjustment factors as follows:
12-month period ending June 30, 2001 = 3.6%I. 12-month period ending June 30, 2002 = 4.1%II. 12-month period ending June 30, 2003 = 4.0%III. 12-month period ending June 30, 2004 = 4.4%IV.12-month period ending June 30, 2005 = 4.0%V. 12-month period ending June 30, 2006 = 3.4% 18. Thus, the Court hereby enters declaratory judgment for the Plaintiff and against the Defendant. Based on the foregoing, the correct methodology for calculating PIP benefits recoverable for MRI services pursuant to Section 627.736(5)(b)5, Florida Statutes (2003-2006) can be expressed by the following formula:
2001 Medicare Part B Fee Schedule CPT Code Amount = x
Increased by 200% (for Accredited Providers) x 2.00 = 2x
Increased by 3.6% (CPI published by 8/1/2001) x 1.036 = 2.072x
Increased by 4.1% (CPI published by 8/1/2002) x 1.041 = 2.156x
Increased by 4.0% (CPI published by 8/1/2003) x 1.040 = 2.243x
Increased by 4.4% (CPI published by 8/1/2004) x 1.044 = 2.342x
Increased by 4.0% (CPI published by 8/1/2005) x 1.040 = 2.436x
19. Applying this methodology to the undisputed facts of this case establishes that the maximum allowable amount is $1,260.43 for the first MRI performed by the Plaintiff, and $1,360.26 for the second MRI performed by the Plaintiff, as calculated below:
First MRI:
2001 Medicare Part B Fee Schedule for CPT Code 72141 = $517.50
Increased by 200% (for Accredited Providers) x 2.00 = 1,035.00
Increased by 3.6% (CPI published by 8/1/2001) x 1.036 = 1,072.26
Increased by 4.1% (CPI published by 8/1/2002) x 1.041 = 1,116.22
Increased by 4.0% (CPI published by 8/1/2003) x 1.040 = 1,160.87
Increased by 4.4% (CPI published by 8/1/2004) x 1.044 = 1,211.95
Increased by 4.0% (CPI published by 8/1/2005) x 1.040 = 1,260.43
Second MRI:
2001 Medicare Part B Fee Schedule for CPT Code 72148 = $558.49
Increased by 200% (for Accredited Providers) x 2.00 = 1,116.98
Increased by 3.6% (CPI published by 8/1/2001) x 1.036 = 1,157.19
Increased by 4.1% (CPI published by 8/1/2002) x 1.041 = 1,204.64
Increased by 4.0% (CPI published by 8/1/2003) x 1.040 = 1,252.82
Increased by 4.4% (CPI published by 8/1/2004) x 1.044 = 1,307.95
Increased by 4.0% (CPI published by 8/1/2005) x 1.040 = 1,360.26
20. The undisputed material facts demonstrate that the Plaintiff billed the Defendant $1,225.99 for the first MRI, which is less than the maximum allowable amount, but more than the amount paid by the Defendant:
Amount Billed $1,225.99
Amount Paid $1,211.99
Damages (1st MRI) $14.00
Thus, the Plaintiff’s damages for the first MRI are $14.00.
21. The undisputed material facts demonstrate that the Plaintiff billed the Defendant $1,360.26 for the second MRI, which is less than the maximum allowable amount, but more than the amount paid by the Defendant:
Amount Billed $1,323.10
Amount Paid $1,211.99
Damages (2nd MRI) $15.12
Thus, the Plaintiff’s damages for the second MRI are $15.12, and the total damages for the two MRIs combined are $29.12.
22. Plaintiff is also entitled to prejudgment interest of $3.62, which is calculated as follows:
Amnt in Dispute Billed $2549.09 — Paid $2519.97 $29.12
Date of Svc 7/19/2006
Date Bill Rcd By Defendant 7/28/2006
30 days from Rec’d 8/27/2006
Interest begins on 8/28/2006
2006 rate = 9% 8/28/2006-12/31/2006 =126 days $0.90
2007 rate = 11% 1/1/2007-11/8/2007 = 312 days $2.73
Total Interest $3.63
23. Based on the foregoing, judgment is hereby entered for the Plaintiff and against the Defendant. The Plaintiff shall recover from the Defendant damages of $29.12, plus prejudgment interest of $3.63, for a total amount of $32.75, which shall bear post-judgment interest at the rate of 11% a year, for which let execution issue.
24. The Court hereby reserves jurisdiction to consider claims for attorneys’ fees and costs.
__________________
1In support of its motion for summary judgment, the Defendant attempts to rely on the affidavit of E. Beth Switzer, a television producer who states that she reviewed a video tape of the Florida House of Representatives Floor from May 27, 2003 and a transcript of a short excerpt from the video, containing the statement of State Representative Donald Brown regarding Senate Bill 0032A, which revised Section 627.736(5)(b)5, Florida Statutes. When considering a motion for summary judgment, the Court cannot consider inadmissible evidence. See, e.g., Palmer v. Liberty National Life Ins. Co., 499 So.2d 903, 904 (Fla. 1st DCA 1986). Ms. Switzer’s affidavit is inadmissible. For example, the testimony of an individual legislator is not admissible as evidence of legislative intent. See, e.g., McLellan v. State Farm Mut. Auto. Ins. Co., 366 So.2d 811, 813 (Fla. 4th DCA 1979). Furthermore, Representative Brown’s out-of-court statements on the video and the transcript are hearsay and also include hearsay within hearsay. For these reasons, Plaintiff’s objection to this evidence is sustained.
