15 Fla. L. Weekly Supp. 1223a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Allowable amount — Adjustment to Consumer Price Index — Insurer failed to apply cumulative and compounding inflation adjustments for 2001, 2002 and succeeding years such that fee schedule amount will reflect prior years’ increases through August 1 of year MRI scan was performed — Demand letter with HCFA form attached was fully compliant with statute, irrespective of fact that amount demanded for MRI exceeded amount allowed under preset fee schedule
STAND-UP MRI OF MIAMI, (KIMENITA JOHNSON, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-004085 CONO 70. October 1, 2008. Steven P. Deluca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Majid Vossoughi, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT’S FOURTH AND FIFTH AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on June 30, 2008 for hearing on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Fourth and Fifth Affirmative Defenses. The Court, having reviewed the Motion and entire Court file; heard argument of counsel; reviewed relevant legal authorities; and been sufficiently advised on the premises, makes the following findings:
BACKGROUND
1. The instant cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on June 18, 2008.
2. On or about October 1, 2007 Defendant filed its Answer and Affirmative Defenses.
3. Defendant’s fourth affirmative defense states as follows:
“. . . the services rendered by Plaintiff were not in accordance with F.S. 627.736(5)(b)(5) and the amounts sought in HCFA’s submitted by the Plaintiff for CPT code 72148 were not reasonable in amount and in accordance with Medicare Part B schedule. Fla. Stat. 627.736 specifically governs and regulates maximum allowable amounts to be charged by MRI facilities and Plaintiff’s bill fails to furnish Defendant with notice of a covered loss since it is not submitted in conformance with the mandatory requirements of the statute.”
4. Defendant’s Fifth Affirmative Defense states in relevant part as follows:
“. . .Defendant states that Plaintiff has failed to meet all conditions precedent prior to filing of the lawsuit in that Plaintiff has failed to furnish Defendant with statutory notice pursuant to F.S. 627.736(11). Specifically, the Demand letters dated 08/30/06 and 03/08/07 fail to specify the exact amount due and owing as mandated and regulated by Fla. Stat. 627.736 and Medicare Part B.”
UNDISPUTED FACTS
5. Patient, Kimenita Johnson, was involved in a motor vehicle accident on March 5, 2006.
6. Patient, Kimenita Johnson, executed an Assignment of Benefits to the Plaintiff, Stand-Up MRI of Miami, Inc.
7. On July 3, 2006, Plaintiff, Stand-Up MRI of Miami, Inc., provided MRI services to Kimenita Johnson.
8. Plaintiff timely mailed its bill on behalf of Kimenita Johnson’s July 3, 2006 MRI to Defendant UNITED AUTOMOBILE INSURANCE COMPANY. United failed to respond.
9. On August 30, 2006, Integrity Healthcare Management, on behalf of Stand-Up MRI of Miami, Inc., sent United a 15 Day Demand Letter which included a copy of the Assignment of Benefits as well as the HCFA 1500 form which included the name of the medical provider who rendered the service, the date of treatment, the type of service, and the amount due. Said Demand Letter was received by United on September 5, 2006. United failed to timely respond.
10. On or about January 24, 2007 Integrity Healthcare Management received a check in the amount of $1,074.10 stating “Full and Final Payment.”
11. On March 8, 2007, Plaintiff, through its counsel, sent United a second 15 Day Demand Letter which included a copy of the Assignment of Benefits as well as the HCFA 1500 form which included the name of the medical provider who rendered the service, the date of treatment, the type of service, and the amount due. Said Demand Letter was received by United on March 12, 2007. United failed to timely respond.
12. On or about May 29, 2007, United untimely responded to Plaintiff’s pre-suit Demand Letter enclosing a check for an amount less than that which was demanded.
CONCLUSIONS OF LAW
13. The Defendant erroneously argues that the Plaintiff is not entitled to recovery where it violated section 627.736(5)(b)(5) by charging in excess of 175% or 200% of the allowable amount. That 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 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. . . (emphasis added)
14. In the case of Progressive Auto Pro Insurance Company v. One Stop Medical, Inc., No. 4D06-2157 (4th DCA 2008) [33 Fla. L. Weekly D1174a] the lower court certified the following question of great public importance:
Under Fla. Stat. § 627.736(5)(b)(5)(2004), is the statutory adjustment applicable to the MRI fee schedule annual and cumulative commencing August 1st, 2002 to the date of the subject scan?
The Appellate Court answered in the affirmative stating as follows: “The trial court correctly concluded that the 2003 amendment to Florida Statute section 627.736(5)(b)5 required applying cumulative and compounding inflation adjustments for 2001, 2002, and succeeding years, so that “the fee schedule amount for the year in question will reflect the combined prior year’s increases from 2001 through August 1st of the year in which the MRI scan is performed.” We believe this interpretation follows the clear legislative intent in retaining the Medicare Part B 2001 starting point. Contrary to Progressive’s position, this construction does not result in an unconstitutional retroactive application of the statute. Rather, it involves application of a statute which became effective October 1, 2003 to an MRI scan performed later in May 2005.
15. Florida Statute 627.736(11) states that the demand letter shall state with specificity, “to the extent applicable, the name of the medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d) or the lost wage statement previously submitted may be used as the itemized statement.”
16. According to Open MRI of Miami-Dade Ltd. a/a/o Joseph Vincent v. Progressive Express Insurance Co., No. 0492014 (Fla. 11th Cir. Ct. Dec 25, 2005), “the statute contemplates two alternative means by which the party sending the pre-suit demand may advise the insurance company of the dates of service and the types of services at issue. First, the statute provides that the party sending the pre-suit demand letter may include with the demand letter an ‘itemized statement’ created for the purposes of inclusion with the pre-suit demand letter. . . Alternatively, the statute also expressly provides that instead of creating an itemized statement for use with the demand letter, the HCFA form previously submitted may be used as an itemized statement.” (Emphasis added)
17. In the case of A-1 Mobile MRI (Hilda Ferreira) vs. United Automobile Insurance Company, (Fla. Broward Cty. Court 2004) [11 Fla. L. Weekly Supp. 1024a] the Court found, as a matter of law, that “it is not an absolute defense to payment of this bill that the amount billed of Plaintiff’s HCFA form exceeded the fee schedule amount, referenced in 627.736(5)(b)(5).” The Court reasoned that if the MRI service is otherwise payable, then the bill is payable at the fee schedule amount as defined under 627.736(5)(b)(5).
18. Additionally, in A-1 Mobile MRI, Inc. (Michael Emekekwue) vs. United Automobile Insurance Company, Case no. 03-13697 (Fla. Broward Cty. Court 2004) [11 Fla. L. Weekly Supp. 936b], the Court found that “any amount billed in excess of the preset fee schedule does not relieve an insurer from paying the reimbursable amount.” The Court went further to state that the reimbursable fee schedule amount is not an issue for a jury to determine, as the amount has already been defined by the statute, in its pertinent sections.
19. The Court finds that the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, failed to apply the cumulative and compounding inflation adjustments for 2001, 2002, and succeeding years, so that “the fee schedule amount for the year in question will reflect the combined prior year’s increases from 2001 through August 1st of the year in which the MRI scan is performed.
20. This Court further finds that Plaintiff’s Demand Letters dated August 30, 2006 and March 8, 2007 were fully compliant with the requirements of Fla. Stat. 627.736(11).
It is therefore,
ORDERED AND ADJUDGED Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Fourth and Fifth Affirmative Defenses is hereby granted.
