18 Fla. L. Weekly Supp. 395a
Online Reference: FLWSUPP 1804FIRS
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, assignee of Thuni Nguyen, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2010-SC-1517, Division B. February 1, 2011. Roberta Arias, Judge. Counsel: Vincent P. Gallagher, Jacksonville, for Plaintiff. James C. Rinaman, III, Jacksonville, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on to be heard upon the Plaintiff’s Motion for Summary Judgment. The Plaintiff’s Attorney Vincent P. Gallagher, Esq., and Defendant’s Attorney, James C. Rinaman, III., Esq. appeared. The Court has considered the memoranda of law submitted by counsel, the pleadings and exhibits and the depositions filed herein.
The Court finds that the facts are not in dispute. This cause arises from medical services billed which were performed by Sandra Snyder, a Registered Nurse Practitioner. These services have been incurred as the result of an automobile accident which is covered by Personal Injury Protection insurance issued by Defendant. The Plaintiff maintains that the Defendant may only limit it’s reimbursement to 200% of the allowable amount listed in the participating physicians schedule of Medicare Part B for 2009. Whereas, the Defendant maintains that the reimbursement for these services should be further limited as provided under the Code of Federal Regulations (CFR) and the Medical Processing Manual (MCP) which limits reimbursement under Medicare for a registered nurse practitioner to 85% of the allowable amount listed in the participating physician’s schedule.
The only issue presented herein is whether the allowable charges under Section 627.736 (5)(a)2.f., Florida Statutes, are those actually listed in the participating physicians schedule of Medicare Part B or as further limited by or modified the CFR and MCP Manual.LAW
This Court has previously dealt with the same issue as that presented herein and has sustained Plaintiff’s argument in First Coast Medical Center Inc., (As Assignee of Nancy Bayonet v. Nationwide Ins. Corp.), (County Court, Fourth Judicial Circuit, Opinion filed February 24, 2010; Case No.: 2009-SC-002864) [17 Fla. L. Weekly Supp. 819a]. The Court has however revisited that order and has considered the cases and arguments advanced by the Defendant herein to see if a different result should issue. The Court finds that it is not persuaded to depart from it’s previous holding and finds that Plaintiff’s Motion for Summary Judgment should be granted.
This Court considers the rates provided under the 42 CFR Section 414.56(c) and the Medicare Claims Processing Manual(CPM) as a limitation of the “allowable amount under the participating physicians schedule of Medicare Part B.” The Court does not, for the reasons explained hereinafter, consider those modifications or limitations part and parcel of what the legislature meant when it used “allowable amount” in the Statute.
Section 627.736(5)(a)2., Florida Statutes provide, in relevant part:
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 Legislature, as pointed out by the Defendant, has incorporated Medicare Part B provisions generally in other subsections of Section 627.736, Florida Statutes. In Subsection 627.736(4), Florida Statutes, the Legislature specifically references limitations provided under Medicare Part B. There, the Legislature provides, in relevant part:
(4) BENEFITS; WHEN DUE.
. . .
When the agency for Health Care Administration provides, pays, or becomes liable for medical assistance under the medicare program related to injury, sickness, disease, or death arising out of the owner-ship, maintenance, or use of a motor vehicle, benefits under ss. 627.730-627.7405 shall be subject to the provisions of the Medicare program. . .
However, the Legislature did not use similar general language in subsection 627.736(5)(a)2.f., Florida Statutes. Here, the language clearly provides that the charges allowed should be “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.”
It is to the statute’s wording that this Court must resort to initially and which will dictate the result in this case, if that wording clearly conveys what the statute requires. “Where the language of [the] statute is clear and conveys a clear and definite meaning, there is no occasion for resorting to [any] 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.2d 1224 (Fla. 2004) [29 Fla. L. Weekly S614a]; Allstate Ins. Co. v. Holy Cross Hospital. Inc., 961 So.2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a]. The Court, applying the plain meaning of the statute, finds that the Defendant cannot use the limitations provided under Chapter 12, Section 120 of the Medicare Claims Processing Manual or in 42 CFR Section 414.56(c) as argued by the Defendant. This conclusion is not only reached by a reading of the clear language used in the statute, but also by comparing this subsection with the other provisions of the PIP statute. The Legislature has not only clearly generally incorporated the Medicare Part B provisions in specific statutes, as in Section 627.736(4), Florida Statutes, in others it has used specific language to require limitations of coverage, as well as to point out which type of limitations it is excluding.
The Legislature, in Section 627.736 (5)(a)4., Florida Statutes, specifically declared that any “limitation” applied under subparagraph 2. did not allow the insurer to use any “utilization limits” that apply under medicare or workers’ compensation. Therefore, the Legislature obviously chose to specifically provide for restrictions, as well as allowances, of “limitations” wherever it felt such was needed. However, such is not the case under subsection 2.f.. Therefore, the only conclusion this court may make is that the Legislature intentionally chose not to do so. This conclusion is rooted in the long standing and well-settled rule that “when the legislature includes particular language in one section of the statute but not in another section of the same statute, the omitted language is presumed to have been excluded intentionally.” Board of Trustees of Florida State University v. Esposito, 991 So.2d 924 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2002a] (quoting L.K. v. Dept of Juvenile Justice, 917 So.2d 919, 921 (Fla 1st DCA 2005) [30 Fla. L. Weekly D2794a]. Likewise under subsection 2.f., the Legislature specifically set out the requirement that, the amounts to be allowed under worker’s compensation, be “as determined under s. 440.13 and rules adopted thereunder. . .” (emphasis added).
The Court finds that this is the type of language that would support the Defendant’s position and that this Court would need to insert into the actual language contained in the subsection 2.f. Such amendment or clarification lies solely within the prerogative of the Legislature and the court cannot judicially alter the wording of the statute when the Legislature clearly has not done so. Sunshine Towing, Inc., et al v. Fonseca, 933 So.2d 594 (Fla. 1st DCA 2006) [31 Fla. L. Weekly D1637a]; Florida Dept of Revenue v. Florida Mun. Power Agency, 789 So.2d 320 (Fla. 2001) [26 Fla. L. Weekly S422a].
Moreover, a reading of Section 627.736(5)(a) 3., Florida Statutes, shows that the Legislature has differentiated between “schedules” and “payment limitations”. That subsection makes it clear that the Legislature has set the floor of allowable charges to be “not less than the allowable amount under the participating physicians schedule of Medicare part B for 2007. . .”, for purposes of the “applicable fee schedule or payment limitation. . .” under subparagraph 2.(emphasis added). This differentiation clearly shows that the Legislature considered the amounts listed in the schedules, as the charges that can be made under 2.f., to be separate and apart from any limitations provided generally under Medicare, as in those found in subsection 2.d. which restricts payments at “200 percent of the Medicare Part A prospective payment. . .” When subsection 627.736(5)2.f., Florida Statutes, is considered in pari materia with the other subsections discussed herein, it becomes apparent that the legislature chose to provide that the “allowable amounts” be those which are reflected in the schedules, rather than as modified anywhere else. It is only by reading these subsections in pan materia that these provisions can be harmonized and that each can be given effect. Cone v. State Dept. of Health, 886 So.2d 1007 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D2413a]. Therefore, it is clear that when the Legislature referred to the amounts allowable under a particular schedule, as the one involved herein, it meant those amounts listed and found therein, not as further defined or limited under other limiting regulations or manuals.
The conclusion reached herein also upholds the purpose of the PIP statute “to provide swift and virtually automatic payment so that the injured insured may go on with his life without undue financial interruption.” Ivey v. Allstate Insurance Co., 774 So.2d 679,684 (Fla. 2000) [25 Fla. L. Weekly S1103a]. To hold otherwise would require medical providers to refer to MCP and other regulations that may be enacted or changed under Title 42 of the Code of Federal Regulations, thereby inserting another level of complex procedures which is not set out by the Statutes and which the Legislature chose not to insert. Such procedure would defeat the purported purpose of the PIP statute and is not required.CONCLUSION
For all of the above reasons this court reaffirms it’s ruling in First Coast Medical Center, Inc., (as asignee of Nancy Bayonet) v. Nationwide, Inc. Corp., supra, because the statute clearly requires that insurers and providers refer to the amounts listed in the participating physicians schedule of Medicare part B, the Plaintiff’s Motion for Summary Judgment should be granted. It is therefore,
ORDERED AND ADJUDGED: That Plaintiff’s Motion for Summary Judgment is Granted.
