16 Fla. L. Weekly Supp. 533a
Online Reference: FLWSUPP 166AFO
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — PIP statute does not authorize insurer to utilize Medicare’s Hospital Outpatient Prospective Payment System limitations or any other limitations not expressly described in section 627.736(5)(a)2.f, (a)3 and (a)4 when determining amounts due for MRI services provide in non-emergency, non-hospital setting
AFO IMAGING, INC., Plaintiff, vs. ALPHA PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 08-21490, Division K. April 13, 2009. William P. Levens, Judge. Counsel: J. Daniel Clark; Christopher P. Calkin; Michael B. Reiss; and David M. Cardevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiff. Andrew S. Bolin, for Defendant.
FINAL SUMMARY JUDGMENT ON COUNT I OF AMENDED COMPLAINT
THIS CAUSE came before the Court on April 13, 2009 concerning the motion for summary judgment filed by Plaintiff AFO Imaging, Inc. (the “MRI Provider”) against Defendant Alpha Property & Casualty Insurance Company (the “Insurance Company”). The Court, having considered the motion, the record, and the arguments of counsel, hereby
ORDERS AND ADJUDGES as follows:
1. The pleadings, affidavits, and other evidence of record show that there is no genuine issue as to any material fact, and that the MRI Provider is entitled to a judgment as a matter of law on Count I of the amended complaint, which seeks declaratory relief concerning the proper interpretation and application of Section 627.736(5)(a)2.f, (a)3, and (a)4, Florida Statutes (2007-2008). Therefore, the MRI Provider’s motion for summary judgment is hereby GRANTED, and the Court hereby provides the following declaratory relief as a matter of law.
2. The undisputed facts demonstrate that the MRI Provider provided magnetic resonance imaging (“MRI”) services to a patient with personal injury protection (“PIP”) coverage provided by the Insurance Company. Prior to providing such MRI services and as a condition to providing them, the MRI Provider obtained from a written assignment of the patient’s PIP insurance benefits. The MRI Provider subsequently submitted a timely and otherwise proper bill, but the Insurance Company paid an amount which was less than 80% of 200% of the allowable amount under the participating physicians schedule of Medicare Part B for 2007, which the MRI Provider contends that it is entitled to receive, pursuant to Section 627.736(5)(a)2.f, (a)3, and (a)4, Florida Statutes (2007-2008). The MRI Provider further contends that the Insurance Company has a routine business practice of reducing amounts charged for MRI services provided to its PIP insured by applying Medicare’s Hospital Outpatient Prospective Payment System (“OPPS”) limitations, and/or some other methodology not authorized by Section 627.736(5)(a)2.f, (a)3 and/or (a)4, Florida Statutes (2007-2008).
3. Before June 19, 2001, there was no specific statutory methodology for determining the amount of MRI fees paid by PIP insurers. Instead, the pre-2001 version of Section 627.736, Florida Statutes applied the same “reasonableness” standard generally applicable to all other types of medical services provided to PIP insureds. As of June 19, 2001, the Legislature enacted Section 627.736(5)(b)5, Florida Statutes (2001), which began imposing a statutory methodology for determining MRI fees paid by PIP insurers. See, Ch. 2001-271, Laws of Fla. (2001).
4. As of January 1, 2008, the Legislature amended the PIP statute in a manner that treats all non-emergency and/or non-hospital related medical services, supplies and care the same, and MRI providers are no longer treated differently than other health care providers operating in the State of Florida. See, Ch. 2007-324, § 20, Laws of Fla. (2007). The pertinent parts of Section 627.736(5), Florida Statutes (2007) stated:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) . . . 2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s.395.002(10) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies, and care, 200 percent of the applicable Medicare Part B fee schedule. However, if such services, supplies, or care are not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care are provided. Services, supplies, or care that are not reimbursable under Medicare or workers’ compensation are not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care were rendered and for the area in which such services were rendered, except that it may not be less than the applicable 2007 Medicare Part B fee schedule for medical services, supplies, and care subject to Medicare Part B.
4. Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider would be entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.
Ch. 2007-324, §20, Laws of Fla. (emph. added). The MRI services at issue in this case were provided in a non-emergency, non-hospital setting, and therefore, fall within the type of “other medical services, supplies, and care” governed by Section 627.736(5)(a)2.f.
5. The “2007 Medicare Part B fee schedule” referenced in Section 627.736(5)(a)2.f. and (a)3, Florida Statutes (2007) sets the baseline reimbursement level for non-emergency and/or non-hospital MRI services which PIP insurers may pay MRI facilities. However, the 2007 version of Section 627.736(5)(a) did not specify which fee schedule within Medicare Part B for 2007 was to be used in the calculation of the minimum allowable amounts that may be reimbursed by PIP insurers, such as the Insurance Company. A nearly identical situation arose in 2001, when the Legislature amended Section 627.736(5)(b)5 to apply an unspecified fee schedule “under Medicare Part B for year 2001” to charges for MRI services. See, Ch. 2001-271, Laws of Fla. (2001). As a result, the Legislature subsequently amended Section 627.736(5)(b)5 in 2003, to clarify that the “participating physician fee schedule” of Medicare Part B for 2001 was the proper schedule to be used. See, Ch. 2003-411, Laws of Fla. (2003).
6. As with the 2003 amendment to Section 627.736(5)(b)5, the Legislature likewise amended Section 627.736(5)(a)2.f and (a)3 in mid-2008 to clarify that the “participating physicians schedule” of Medicare Part B is the proper schedule to be used. See, Ch. 2008-220, Laws of Fla. (2008). See, Florida Senate’s House Message Summary dated May 1, 2008. As amended in 2008, in pertinent part, Section 627.736(5), Florida Statutes (2008) now states:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
[(a)2.]f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of applicable Medicare Part B fee schedule. However, if such services, supplies, or care are not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care are provided. Services, supplies, or care that are not reimbursable under Medicare or workers’ compensation are not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care were rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule applicable 2007 Medicare Part B for 2007 fee schedule for medical services, supplies, and care subject to Medicare Part B.
Ch. 2008-220, Laws of Fla. (2008) (underline and strike-through in original).
7. The legislative analysis associated with the 2008 legislation states, “under current law, insurers are allowed to limit reimbursement for PIP benefits to 80 percent of 200 percent of the Medicare Part B fee schedule for specified medical service. The amendment clarifies that PIP reimbursement for medical services would be based on 200 percent of the allowable amount under the ‘participating physicians’ schedule of Medicare Part B for 2007.” See, Florida Senate’s House Message Summary dated May 1, 2008 (emph. added).
8. If the Legislature merely intends to clarify what was doubtful and safeguard against misapprehension as to existing law, then an amendment to a statute should be interpreted to clarify the pre-existing law and not enact a subsequent change. State ex Rel. Szabo Food Serv. Inc. of N.C. v. Dickinson, 286 So. 2d 529, 531 (Fla. 1974); U.S. Fire Ins. Co. v. Roberts, 541 So. 2d 1297 (1st DCA 1989); City of New Smyrna Beach v. Bd. of Trustees of Internal Imp. Trust Fund, 543 So.2d 824 (Fla. 5th DCA 1989). Thus, the 2008 clarifying legislation did not enact a substantive change to the 2007 version of Section 627.736(5)(a) and both versions of the statute must be interpreted to mean the same thing. See, e.g., Millennium Diagnostic Imaging Center, Inc. v. Security National Ins. Co., 882 So.2d 1027 (Fla.3d DCA 2004); Clearview Imaging, L.L.C. v. State Farm Mut. Auto. Ins. Co., 932 So.2d 423 (Fla. 2d DCA 2006); Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982).
9. Additionally, Section 627.736(5)(a)4, Florida Statutes (2007-2008) further limits a PIP insurer’s ability to rely on Medicare for any purpose other than using “the allowable amount under the participating physicians schedule of Medicare Part B” as a baseline reimbursement level. As previously quoted herein, Section 627.736(5)(a)4 states that “Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare . . . regardless of whether such provider would be entitled to reimbursement under Medicare. . . .”
10. Thus, under Section 627.735(5)(a)2.f, (a)3, and (a)4, Florida Statutes (2007-2008), the allowable amount under the participating physicians schedule of Medicare Part B for 2007 sets the baseline value of MRI services which may be reimbursed by PIP insurers to MRI facilities in Florida. In other words, Medicare Part B for 2007 must be used when the Medicare fee schedule in effect at the time the MRI services are rendered is “less than the allowable amount under the participating physicians schedule Medicare Part B for 2007. . . .” First, under Section 627.736(5)(a)2.f, the “participating physicians” schedule of Medicare Part B is the proper fee schedule. Second, under Section 627.736(5)(a)2.f and (a)3, 80% of 200% of the participating physicians schedule Medicare Part B for 2007 is the absolute minimum reimbursement that a PIP insurer may pay an MRI provider. Third, under Section 627.735(5)(a)4, a PIP insurer is prohibited from applying any other Medicare limitations.
11. The Medicare Part B Participating Physicians Fee Schedule is annually provided by the United States Department of Health and Human Services, Centers of Medicare and Medicaid Services (“CMS”) and takes into account a number of factors, including practice area expertise, malpractice expense, relative value units, and other items in an effort to set an appropriate fee schedule for those services paid for by the federal government to those individuals eligible to receive Medicare benefits. The Medicare Part B Participating Physicians Fee Schedule is annually updated and approved by CMS and published in the Federal Registry each year. The federal government’s official CMS website provides the Medicare Part B Participating Physicians Fee Schedule under the heading “Non-facility Price” and is located at: http://www.cms.hhs.gov/PFSlookup/02_PFSSearch.asp#TopOfPage. See, Affidavit of Jeffrey Howard.
12. Notably, Section 627.736(5)(a)2.f, (a)(3) and (a)(4), Florida Statutes (2007-2008) do not mention or refer to the limitations or caps established under Medicare’s Hospital Outpatient Prospective Payment System (“OPPS”), which is a prospective payment system established by CMS for hospital outpatient services furnished to Medicare beneficiaries. See, Office of the Inspector General; Medicare Program Prospective Payment System for Hospital Outpatient Services; Final Rule, 65 Fed. Reg. 68,18434 (April 2000). The OPPS caps are not used by Medicare to determine or calculate the Medicare Part B Participating Physicians Fee Schedule, which is the schedule expressly referenced in Section 627.736(5)(a). Rather, OPPS is a different fee schedule, with different calculations that generates different amounts than the Participating Physicians Fee Schedule. Moreover, the OPPS caps are used by the federal government to reduce budget expenditures under the Deficit Reduction Act of 2005, and the caps therein are applicable only to Medicare patients or healthcare providers seeking reimbursement from Medicare for certain outpatient services provided to patients with Medicare coverage. See, e.g. CMS Publication: Quick Facts about Paying for Outpatient Services for People with Medicare Part B. See, Affidavit of Jeffrey Howard.
13. It is well settled that when the Legislature includes one thing in a statute but omits another, it does so knowingly and intentionally. Expressio unis est exclusio alterius. See, e.g., Estay v. Sharp Electronics Corp., 409 So. 2d 217, 219 (Fla. 4th DCA 1982). Based on the plain language of Section 627.736(5)(a)2.f, (a)3, and (a)4, it is clear that the Florida Legislature excluded any reference to any prospective payment systems, including OPPS, and instead, required that PIP reimbursement amounts shall only be determined by using the “participating physicians schedule of Medicare Part B.” The Legislature’s omission of prospective payment arrangements in Section 627.736(5)(a)2.f, (a)3, and (a)4 is significant. For example, Section 627.736(5)(a)2.d, Florida Statutes (2007-2008) pertains to non-emergency hospital inpatient services, and that subsection expressly states that such services are reimbursable by PIP insurers at 80% of “200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.” (Emph. added). Prospective payment arrangements are also expressly discussed in Section 408.50, Florida Statutes. In sharp contrast to those statutes, Section 627.736(5)(a)2.f, (a)3, and (a)4 make absolutely no mention of prospective payment arrangements. Indeed, subsection (a)4 expressly states that “Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare . . . .”
14. The courts are not authorized to rewrite a statute to supply words that the Legislature has omitted. See, e.g., Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1, 7 (Fla. 2004) (court cannot “rewrite the statute or ignore the words chosen by the Legislature so as to expand its terms”).
15. Consequently, the Court hereby determines and declares as a matter of law that Section 627.736(5)(a)2.f, (a)3, and (a)4 do not authorize a PIP insurer to utilize the “OPPS” limitations or any other limitations not expressly described by Section 627.736(5)(a)2.f, (a)3, and (a)4, when determining the amounts due for MRI services provided to a PIP insured in a non-emergency, non-hospital setting.
