18 Fla. L. Weekly Supp. 406b
Online Reference: FLWSUPP 1804ALEX
Insurance — Personal injury protection — Coverage — Despite fact that PIP policy issued in 2008 does not specifically reference fee schedule in 2008 PIP statute or incorporate specific fee schedule, statutory fee schedule is made applicable by section 627.7407(2) — Question of whether insurer was authorized by PIP statute to cap amount of PIP benefits paid for MRI services by applying Medicare outpatient prospective payment system is stayed pending disposition of issue in class action to which medical provider is party
DCI MRI, INC., (Lakiesha Alexander), Plaintiff(s), vs. DAIRYLAND INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division RS. Case No. 2008 SC 016673 SB. September 21, 2010. Janis Brustares Keyser, Judge. Harley N. Kane, Greenspan Law Firm, Boca Raton, for Plaintiff. Scott Hutchens, Banker, Lopez, Gassler, St. Petersburg, for Defendant.
Appeal dismissed without prejudice for parties to move for reconsideration in light of recent rulings by district courts of appeal.
ORDER GRANTING DEFENDANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT ANDGRANTING DEFENDANT’S MOTION TO STAY
THIS CAUSE came before the Court on July 23, 2010, on Plaintiff’s and Defendant’s Cross Motions for Summary Judgment, and the Court, having reviewed the pleadings, heard arguments of counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
Background and Stipulated Facts
1. Plaintiff is a medical provider and has rendered MRI services to the assignor in the above-referenced case. Pursuant to Florida Statute 627.736, Plaintiff seeks compensation for services rendered to assignor from Defendant for 80% for medical services which are related to the automobile accident in question. The parties have entered into a Joint Stipulation of Facts and Law for all facts and issues not in dispute. The following facts are among those stipulated by the parties:
(A) On February 1, 2008, Defendant issued a policy of insurance that provided personal injury protection coverage to Lakiesha Alexander. A true, genuine, and admissible copy of the policy was attached to the Joint Stipulation of Facts and Law in this case.
(B) On March 30, 2008, Lakiesha Alexander was involved in a motor vehicle accident in which she sustained injuries.
(C) On July 10, 2008, Plaintiff provided a MRI of the lumbar spine (both professional and technical components) to Defendant’s insured, Lakiesha Alexander. On that date, Lakiesha Alexander executed an assignment of benefits in favor of Plaintiff.
(D) The MRI testing was medically necessary and related to injuries sustained during the motor vehicle accident.
(E) Defendant received a CMS-1500 billing form from Plaintiff on July 20, 2008. A true, genuine and admissible copy of the CMS-1500 was attached to the Joint Stipulation of Facts of Law in this case. The billing was timely, and the form was filled out correctly. Defendant raises no defenses to the form of the CMS-1500 form or to the assignment of policy benefits.
(F) Plaintiff billed $1,800.00 for the MRI (CPT code 72148). Plaintiff contends this amount is reasonable and represents a usual and customary charge.
(G) Defendant determined the allowable reimbursement amount for the MRI (CPT code 72148) was $870.52.
(H) Defendant contends it may limit reimbursement of the MRI pursuant to Florida Statutes Section 627.736(5)(a)2.f.
(I) Defendant then paid 80% of 200% of the Outpatient Prospective Payment System (OPPS) cap adopted by Medicare to further reduce payments made under Medicare Part B.
(J) Defendant paid Plaintiff $696.42, which represents 80% of $870.52.
(K) The 2008 version of the no-fault act is applicable to this case. Analysis
2. Pursuant to the stipulations of the parties, there are no disputed issues of fact, and this case rests upon pure questions of law:
I. Whether the fee schedules set forth in Section 627.736(5)(a)(2), Florida Statutes, may be applied to the bill at issue in this suit.
II. Whether “the allowable amount under the participating physicians schedule of Medicare Part B” directs PIP reimbursement based upon the amounts actually allowed participating providers under Medicare Part B or, alternatively, requires determination of PIP reimbursement without consideration of the OPPS payment amount.
Issue I: Whether the fee schedules set forth in Section 627.736(5)(a)(2), Florida Statutes 2008, may be applied to the bill at issue in this suit.
3. The Florida Legislature revived the Florida Motor Vehicle No-Fault Law (No-Fault Law) with certain changes from the prior version. The changes included an expansion of the fee schedule provisions of Section 627.736 (the PIP statute), which had been previously limited to a handful of procedures. Laws 2007, C. 2007-324 Section 13, eff. Jan 1, 2008. Plaintiff argues that Defendant may not utilize the statutory fee schedule provisions because the language of the subject PIP policy does not specifically reference Section 627.736(5)(a)(2), Florida Statutes (2008), or expressly incorporate a specific fee schedule.
4. This Court previously entered an Order Granting Defendant’s Motion for summary Judgment on March 26, 2010, granting summary judgment to Defendant on this issue. At the hearing on July 23, 2010, this Court permitted Plaintiff to make additional arguments directed to this issue and allowed Defendant to respond. The Court remains unpersuaded by Plaintiff’s arguments and, therefore, reaffirms the holding in its prior order for the reasons set forth therein.
5. This Court finds that it was the Legislature’s intent to incorporate all provisions of the No-Fault Law into the policy at issue in this case and that there is no requirement in the PIP statute that insurers amend their policies to specifically reference Section 627.736(5)(a)2 or its provisions before applying the statutorily authorized fee schedules. Section 627.7407(2) provides, “[a]ny personal injury protection policy in effect after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault law, as revived and amended by this act.” Section 627.7407(2), Fla. Stat. (208); see also Section 627.7407(5)(c), Fla. Stat. (2008). As a result, all provisions of the renewed No-Fault Law are incorporated into the subject policy of insurance.
6. Accordingly, this Court finds that Defendant may utilize the fee schedule as set forth in Section 627.736(5)(a)2 to determine the amount of payment for medical bills at issue pursuant to the Florida PIP statute under the coverage provided in the subject policy of insurance.
Issue II. Whether “the allowable amount under the participating physicians schedule of Medicare Part B” directs PIP reimbursement based upon the amounts actually allowed participating providers under Medicare Part B or, alternatively, requires determination of PIP reimbursement without consideration of the OPPS payment amount.
7. Having established that Defendant was entitled to utilize the PIP statute fee schedule, a second issue arises with respect to the proper reimbursement amount under the fee schedule for the subject MRI services.
8. The specific question raised is whether “the allowable amount under the participating physicians schedule of Medicare Part B” directs PIP reimbursement based upon the amounts actually allowed participating providers under Medicare Park B or, alternatively, requires determination of PIP reimbursement without consideration of the Outpatient Prospective Payment System (OPPS) payment amount.
9. This Court reserves ruling as to the question above concerning consideration of the OPPS payment amount in PIP reimbursement of MRI services, and this action shall be stayed until final resolution of AFO Imaging, Inc. v. Nationwide Mutual Insurance Company, et al.., Consolidated Case Nos. 2D10-929 and 2D10-2274, pending before the Second District Court of Appeal of Florida.
10. Plaintiff is a party to a pre-existing Florida class action certified under Florida Rule of Civil Procedure 1.220(b)(1) and (b)(2) that will bind Plaintiff and Defendant as to the proper fee schedule amount to be applied under the Florida Motor Vehicle No-Fault Act.
11. On May 27, 2009, a class of health care providers, who provided MRI services to Defendant’s insureds and have been reimbursed based upon Defendant’s application of Section 627.736, was certified. AFO Imaging, Inc. v. Nationwide Mutual Insurance Company, et al., Case No. 08-CA-021533.
12. The circuit court found that, for the purposes of class certification, “the requirements of rule 1.220(b)(1)(A) and (b)(2) are satisfied, such that it is appropriate to certify the proposed class for purposes of determining the Plaintiff’s claims for declaratory and injunctive relief concerning the class as a whole. Moreover, the Court [found] that a sufficient showing [was] made to justify the (b)(1)(A) and (b)(2) Class as a non-opt out class,” reasoning that “the statutory sections at issue in [the class action] are designed to provide for the same scheduled reimbursement methodology and amount for MRI services reimbursement, but the release of class members to pursue separate actions invites the establishment of different obligations and standards of conduct to those class members.” (emphasis added)
13. Plaintiff in this case is a member of the certified class, as defined by the circuit court in the class action and, therefore, cannot opt out of the (b)(1) or (b)(2) class. Plaintiff was sent a notice of the class action and elected to opt out of the (b)(3) damages class. However, as set forth above, the circuit court found that Plaintiff would not be allowed to opt out of the (b)(1) and (b)(2) class certified for purposes of rendering declaratory and injunctive relief.
14. Accordingly, the circuit court in the class action has jurisdiction over: (a) Plaintiff in this case; and (b) the issues in this case regarding “the proper reimbursement methodology and calculation of MRI reimbursements under Section 627.736(5)(a) of the No-Fault Act.”
15. On May 5, 2010, the circuit court entered Final Judgment in the class action consistent with its Order on Competing Motions for Summary Judgment that it had entered on January 25, 2010.
16. The Final Judgment and the Order on Competing Motions for Summary Judgment are presently on appeal in the Second District Court of Appeal of Florida, Consolidated Case Nos. 2D10-929 and 2D10-2274. The disposition by the Second District (or further appellate court review) will adjudicate the legal rights of Plaintiff and Defendant as to the proper reimbursement methodology and calculation of MRI reimbursements under Section 627.736(5)(a) of the No-Fault Law.
17. The Florida appellate courts have held that failure to stay an action filed subsequent to a class action raising similar operative facts and law is an abuse of discretion and a departure from the essential requirements of law. NEC Electronics, Inc. v. VG Sales Co., 655 So. 2d 1146, 1148 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D965a] (reversing denial of stay where prior filed action included substantially similar parties); J.M. Smucker Co. v. Rudge, 877 So. 2d 820, 821 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1584b] (reversing denial of stay where there was a pre-existing proposed class action). The Florida appellate courts have reasoned the defending party in both actions must be protected from “duplication of efforts and costs, as well as the possibility of inconsistent judgments.” Rudge, 877 So. 2d at 821; see also Pilevsky v. Morgans Hotels Group Mgmt., 961 So. 2d 1032, 1035 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1733a]; NEC Electronics, Inc., 655 So. 2d at 1148.
18. Additionally, the parties in this case have stipulated to the proper calculations due under the participating physicians schedule of Medicare Part B where the OPPS payment amount is applied and where it is not applied. Accordingly, this Court’s task upon resolution of the class action will be simple application of that stipulated amount. Wherefore, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby GRANTED in part, and Plaintiff’s Motion is DENIED in part, and Defendant’s Motion to Stay is GRANTED, and this matter shall be stayed until final resolution of AFO Imaging, Inc. v. Nationwide Mutual Insurance Company, Consolidated Case Nos. 2D10-929 and 2D10-2274, pending before the Second District Court of Appeal of Florida.
