17 Fla. L. Weekly Supp. 819a
Online Reference: FLWSUPP 1709BAYO
Insurance — Personal injury protection — Coverage — Nurse practitioner — PIP statute requires that reimbursement for services performed by nurse practitioner be determined in accordance with participating physicians fee schedule of Medicare Part B without reference to limitations on nurse practitioners contained in Code of Federal Regulations
FIRST COAST MEDICAL CENTER INC., (As Assignee of Nancy Bayonet), Plaintiff(s), vs. NATIONWIDE INSURANCE COMPANY OF AMERICA A FOREIGN CORPORATION, Defendant(s). County Court, 4th Judicial Circuit in and for Duval County. Case No. 2009-SC-2864, Division: B. February 24, 2010. Robert A. Arias, Judge. Counsel: Vincent P. Gallagher, Jacksonville, for Plaintiff. Michael J. Laporte, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on to be heard upon the parties’ cross Motions for Summary Judgment. The Plaintiff was represented by Vincent P. Gallagher, Esq. and Defendant was represented by Michael J. Laporte, Esq. the Court has considered the arguments of counsel, the memorandum of law filed herein and the pleadings filed in this case. The facts in this case are not in dispute. As will be examined herein, the Court finds that the Plaintiff’s Motion for Summary should be granted and Defendant’s Motion for Summary Judgment should be denied.
FACTS
The Plaintiff submitted a statement to Defendant billing for services performed on the insured Nancy Bayonet, under the code CPT99213-25. These services consisted of a re-evaluation which was performed by Sandra Snyder, a Registered Nurse Practioner. The Defendant paid the Plaintiff at 80 percent of 200 percent of the greater of the 2007 or 2008 of, what Defendant claims, was the allowable amount under the participating physicians schedule of Medicare Part B, as required by Section 627.736(5)(a)(2)(f), Fla. Statutes. The Defendant paid $79.70 while the Plaintiff claims the payment should have been $92.00. The difference in amounts is due to the Defendant’s use of limitations on nurse practioners contained in 42 CFR § 414.56(c) where the Plaintiff relies solely on the physicians schedule of Medicare Part B.
DISCUSSION
The Defendant claims that it should only have to pay $70.70 because the services were performed by a nurse practioner and, thus it is only payable at the rate established under 42 CFR §414.56(c) which sets further limits on the rates reimbursable for nurse practioners under Medicare Part B. The Plaintiff, on the other hand, argues that Section 627.736 (5)(a)(2)(f), Florida Statutes allows the insurer to limit its reimbursement based only on the “allowable amount under the participating physicians schedule of Medicare Part B,” without being subject to other limitations which may be contained elsewhere, as in the Code of Federal Regulation. A review of the relevant law and statutory construction directs the court to find that the Plaintiff’s position prevails.
The parties agree that the charges herein are governed by Florida Statute Section 627.736(5)(a)(2)(b). This section, in relevant part provides:
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.
The starting point of any statutory analysis has to be the Legislature’s pronouncement in the words of the statutes it enacts. “Where the language of a statute is clear and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given it’s plain and obvious meaning.” Blanton v. City of Pinellas Park, 887 So.2nd 1224 (FIa.2004) [29 Fla. L. Weekly S614a]. This is also the case with Florida’s No-Fault Law. Allstate Ins. Co. v. Holy Cross Hosp. Inc., 961 So.2nd 328 (Fla. 2007) [32 Fla. L. Weekly S453a] (“Where the wording of the [no fault] law is clear and ameanable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language. . ., ” id. at 334)
Applying the plain meaning of the language in Section 627.736(5)(a)(2)(f), the Court finds that the Defendant, Nationwide Insurance Company of America, cannot use the limitations contained in 42 CFR § 414.56(c). This limitation is not contained in “the participating physicians schedule of Medicare Part B.” Therefore, this Court cannot interpret the statute as incorporating any other schedule as that specifically set out therein. In order to hold as Defendant argue, would necessitate this court to read the statute as containing additional language incorporating any and all limitations on the physicians schedule or the Medicare statute generally. The legislature could have included such language but apparently chose not to do so and this Court cannot do so. Knowles v. Beverly Enters. Fla. Inc., 898 So.2nd 1 (Fla. 2004) [30 Fla. L. Weekly S15a].
Additionally, a review of Section 627.736(5)(a)(3), Florida Statutes, reflects that the legislature considered and used the qualifier “payment limitation” when it promulgated Subsection (5)(a)(2). Under subsection (5)(a)(3), the legislature chose to require that any “payment limitation under Medicare. . .not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007. . .” Therefore, even if the Defendants was correct in it’s reliance of the phrase “payment limitation under Medicare” under (5)(a)(3) to be a reference to anything more specific than as a general description of the maximum charges allowed under subsection (5)(a)(2) (80 percent of 200 percent of the allowable amounts), this subsection nevertheless clearly provides that such limitation “not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007,” the Plaintiff, therefore would be entitled to the amount it seeks. Lastly, the Legislative’s use of “limitation” indicates to this Court that the Legislature had the opportunity to qualify subsection (5)(a)(2)(f), as the Defendant wishes this Court to construe, and it chose not to do so.
CONCLUSION
In sum, the Court finds subsection 627.736(5)(a)(3)(b) clearly and unanimously require that the participating physicians schedule is the appropriate schedule for determining reimbursements for reevaluations performed by Nurse Practioners without resorting to any other schedules or limitations promulgated under the code of Federal Regulations.1
Conclusion
For the above stated reasons, the Plaintiff’s Motion for Summary Judgment is granted and Defendant’s Motion for Summary Judgment is Denied.
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1United District, Court Judge Ursula Ungaro has recently similarly held with regard to the Medicare’s Outpatient Prospective System fee schedule. See All Family Clinic of Daytona Beach, Inc., v. State Farm Mutual Auto. Ins. Co., 09-60902-DIV-Ungaro, (U.S. Dist. Ct. Southern Dist. of Florida. Feb. 11, 2010).
