17 Fla. L. Weekly Supp. 1110a
Online Reference: FLWSUPP 1711POWE
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 PIP statute when determining amounts due for MRI services provided to PIP insured in non-emergency, non-hospital setting since January 1, 2008
V&T INVESTMENT PARTNERS, LLC d/b/a MEDVIEW IMAGING a/a/o LORRAINE POWELL, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2009-SC-12475. June 4, 2010. Heather L. Higbee, Judge. Counsel: Aaryn Fuller, Bogin, Munns & Munns, P.A., Orlando, for Plaintiff’s. John Morrow, Conroy, Simberg, Ganon, Krevans, & Able, Orlando, for Defendants.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTIONFOR JUDICIAL NOTICE
THIS CAUSE, having come on before this Court on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Judicial Notice, and the Court having reviewed the motions, applicable law, memorandums of law supplied and having heard arguments of counsel finds that there are no material facts in dispute and that the Defendant STATE FARM FIRE & CASUALTY COMPANY (“State Farm”)’s Motion for Summary Final Judgment is DENIED. Plaintiff’s Motion for Judicial Notice is DENIED in part and GRANTED in part.
UNDISPUTED FACTS
State Farm insured LORRAINE POWELL (“the Insured”) under a personal injury auto policy. The personal injury protection insurance policy provided $10,000.00 in PIP coverage and $5,000.00 in Medical Payments Coverage. On or about March 24, 2009, during the period of coverage, the Insured was involved in an automobile accident. She and, through assignment of benefits, her assignees thereafter made claims for PIP and medical payments benefits. State Farm paid medical bills under the coverages.
On or about May 15, 2009, V&T Investment Partners, LLC., d/b/a, Medview Imaging (hereinafter “Medview”) provided the Insured with an MRI of the spinal canal and contents, cervical without contrast material. Following the Insured executing an assignment of benefits, Medview billed for these services rendered to State Farm’s Insured under CPT code 72141. The total submitted by Medview for CPT Code 72141 was $1,250.00. On or about May 29, 2009, State Farm paid Medview the sum of $843.64 for the treatment specified above. This amount represented 200% of the Medicare Part B amount after the Hospital Outpatient Prospective Payment System (hereinafter “OPPS”) cap reduction allegedly mandated by 42 U.S. C Section 135w-4 as part of Congress’ Deficit Reduction Act of 2005 (hereinafter “DRA”). Additionally, on May 29, 2009, State Farm sent to Medview an Explanation of Review detailing the reasons for the payment amount. The Explanation of Review set forth that, effective January 1, 2007 Medicare capped the payment for the technical portion of the MRI pursuant at the OPPS cap.
On September 21, 2009, Plaintiff sent a demand letter to State Farm seeking payment of the principal amount of $162.38. The demand letter was received by State Farm on September 24, 2009. On October 12, 2009, State Farm responded to Plaintiff’s demand letter asserting that State Farm paid the subject bill in accordance with Medicare Part B and Florida PIP statute. The resulting lawsuit was filed and State Farm was served through the Florida Department of Financial Services on October 23, 2010.
Briefly addressing Plaintiff’s Motion for the Court to take Judicial Notice of the Affidavit of Congressman Bill Posey, this Court does not find that an affidavit of a congressman is appropriately considered by this Court in the Court’s determination of statutory construction or interpretation. Congressman Posey is not an expert, and the contents of his Affidavit do not qualify as a matter that must be judicially noticed. As such the Court has not considered this affidavit in reaching the conclusions of law.
QUESTION BEFORE THE COURT AND POSITION OF THE PARTIES
The question before the Court, therefore, is whether or not, pursuant to the Florida PIP Statute, the Defendant Insurance Company is permitted to pay less for MRI services than the allowable amount listed in the participating physicians’ schedule of Medicare Part B, as a result of the DRA or whether the participating physicians’ schedule of Medicare Part B is a specific fee schedule calculated pursuant to a statutory formula and expressly identified by the Florida Legislature in the Florida PIP statute. Thus, this issue is whether State Farm’s decision to reimburse the Plaintiff in the amount of the OPPS cap is proper under the Florida PIP statute.
State Farm contends that the statutory phrase “allowable amount under the participating physicians’ fee schedule of Medicare Part B” refers to the actual amount allowed by Medicare under the published fee schedule and the OPPS adjustment is expressly incorporated into the “allowable amount” under the No Fault Statute because 42 U.S.C. Section 1395w-4(b)(4)(A) requires that the OPPS amount be substituted for the participating physicians’ amount when it is less. The Plaintiff alleges that the “allowable amount” is simply the participating physicians’ schedule in Medicare Part B and that the OPPS cap cannot be considered, as it is not referenced in Florida’s No-Fault Statute. Furthermore, the Plaintiff asserts that the OPPS cap is a separate creature of Federal Law that is relevant only to a limited subset of providers of hospital outpatient services.
This Court has reviewed and takes judicial notice of the following: Florida Statute Section 627.736(5)(a)(2)(f), (5)(a)(3); 42 USC Section 1395w-4; Section 5102 of the Deficit Reduction Act of 2005 amending 42 USC Section 1395w-4(C)(2)(B); Revised 2007 Medicare Part B Physician and Non-Physician Practitioner Fee Schedule; Revised 2006 Medicare Part B Physician and Non-Physician Practitioner Fee Schedule; GAO Report Number GAO-08-1102R; and US Department of Health and Human Services websites.
IT IS THEREFORE ORDERED AND ADJUDGED as follows:
1. There is no genuine issue of material fact but the Defendant is not entitled to a Judgment as a matter of law.
2. The Court agrees with and adopts the reasoning set forth in AFO Imaging, Inc. v. Alpha Property & Casualty Ins. Co., 16 Fla. L. Weekly Supp. 533a (Fla. 13th Cir. Ct. Apr. 13, 2009); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., FLWSUPP 1705AFO, (Fla. 13th Cir. Ct. Jan. 25, 2010); Advantage Open MRI, Inc. v. State Farm Mutual Automobile Insurance Company et. Al. No. 08-CA-020931 (Fla. 13th Cir. Ct, June 1, 2010); Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat’l Ins. Co., 882 So. 2d 1027, 1029-30 (Fla. 3d DCA 2004) finding that the amendment to the Florida No-Fault Statute, which added “participating physician fee schedule”, clarified the term “allowable amount”; and All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Automobile Ins. Co., __ F. Supp. 2d __, 2010 WL 569881 (S.D. Fla. 2010)1 [22 Fla. L. Weekly Fed. D352a].
3. This Court concludes and declares as a matter of law that Section 627.736(5)(a)2.f, 3, and 4, Florida Statutes (2007-2009)2 do not authorize a PIP insurer to utilize the “special rule for imaging services” of 42 USC Section 1395w-4(b)(4), the Hospital Outpatient Prospective Payment System (“OPPS”), also known as the “OPD fee schedule,” or any other Medicare restrictions or limitations not expressly described by the Florida PIP statute when determining the amounts due for magnetic resonance imaging services provided in the State of Florida to a PIP insured in a non-emergency, non-hospital setting since January 1, 2008. Florida’s No-Fault statute unambiguously identifies the participating physicians’ schedule as the appropriate schedule for determining MRI reimbursements and State Farm’s reliance on the OPPS schedule is inappropriate under the state statute.
3. Defendant’s Motion for Summary Judgment is hereby DENIED.
4. As set forth above in this Order, Plaintiff’s Motion for Judicial Notice is DENIED in part and GRANTED in part, the Court having taken judicial notice of those items listed previously in this Order, having reviewed case law, and the pleadings filed; for clarification, this Court has specifically not considered the Affidavit of Congressman Bill Posey and hereby STRIKES same.
4. This is a non-final order. The Court reserves jurisdiction to enter a Final Judgment after considering and determining the Plaintiff’s remaining claims, as well as any motions for attorney’s fees and costs.
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1This Court respectfully disagrees with the contrary decisions reached in MRI Services I, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 46a (Fla. Broward County Ct. Nov. 4, 2009), DCI MRI, Inc., (Lakiesha Alexander) v. Dairyland Insurance Company, No. 08SC-16673SB (Fla. Palm Beach County Ct. March 23, 2010), and Bravo v. State Farm Fire & Casualty Co., 17 Fla. L. Weekly Supp. 194b (Fla. Orange County Ct. Jan 14, 2010).
2As used herein, all citations to the “2007-2009” versions of Section 627.736, Florida Statutes and all subsections thereof, refer to the versions in effect since January 1, 2008, as adopted in Chapter 2007-324, Laws of Florida (2007), Chapter 2008-220, Laws of Florida (2008) and Chapter 2009-21, Section 86, Laws of Florida (2009).
