19 Fla. L. Weekly Supp. 749a
Online Reference: FLWSUPP 1909ARTIInsurance — Personal injury protection — Declaratory judgment — Case or controversy — Medical provider may seek declaratory relief as to amount of benefits recoverable irrespective of exhaustion of benefits — Coverage — Provider has right to receive benefits under reimbursement rate set by Medicare Part B fee schedule without application of Outpatient Prospective Payment System or any other methodology not authorized by PIP statute
MAYUMI ARTILES, an insured individual by and through her assignee, TAMPA BAY IMAGING, LLC, Plaintiff, v. AMICA MUTUAL INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 09-CC-009231, Division J. May 11, 2012. Honorable Gaston J. Fernandez, Judge. Counsel: Philip A. Friedman, FL Legal Group, Tampa, for Plaintiff. Douglas M. Fraley, Molhem & Fraley, P.A., Tampa, for Defendant.
ORDER ON FINAL JUDGEMENT
THIS MATTER, Case Management Conference, Motion to Reschedule December 12, 2011 hearing or the alternative Motion for Reconsideration Regarding Orders arising from December 12, 2011 hearing (including supplemental motion), and both parties ore tenus, Motion for Final Disposition on the morning of March 15, 2012 with Philip A Friedman, Esquire present for the Plaintiff and Douglas M. Fraley, Esquire present for the Defendant and the Court being apprised of applicable argument of counsel case law and statute as well as history of the case file hereby ORDERS and ADJUDICATES as follows:
(1) Defendant’s Motion to Reschedule December 12, 2011 hearing or the alternative Motion for Reconsideration Regarding Orders arising from December 12, 2011 hearing (both original motion and supplemental motion) are herein DENIED. The Court specifically finds as admitted by counsel, the hearing was properly noticed.
(2) As to the parties ore tenus Motion for Final Resolution, the Court hereby enters judgment in favor of the Plaintiff as has been consistent with the prior Orders in this matter. In this case, Tampa Bay Imaging, a diagnostic imaging provider, performed services to the Defendant’s insured, Mayumi Artiles. After the Plaintiff performed the services and submitted its bill to the Defendant, the Defendant re-priced the bill and made payment pursuant to a fee schedule known as the Outpatient Perspective Payment System (OPPS), rather than the Participating Physicians Schedule Medicare Part B as contemplated by Florida law. The Court is aware of the Second District Court ruling in Nationwide Mut. Fire Ins. Co. et. al. v. AFO Imaging, Inc., 36 Fla. L. Weekly D1463b (Fla. 2d DCA 2011) finding that subsections (5)(a)2)(f) and (5)(a)(3) of Florida Statute §627.736 unambiguously refers to and only to the Medicare Part B Participating Physicians Schedule as the minimum amount due for MRI services without any cap by the OPD Fee Schedule or otherwise “as payable by Medicare under OPPS,” finding the Defendant improperly made payment in this case. Indeed, the Defendant admits as much; however, sought to avoid judgment in this case as they had alleged they had contractually paid the limits of PIP coverage liability on behalf Ms. Artiles and thus “exhausted” benefits. As such, they alleged there is no current case or controversy such that a declaratory ruling in this matter would be merely “advisory” and does not apply to any “current case or controversy.” However, this Court disagrees and . . .
(3) Hereby declares as a matter of law that the Plaintiff has the right to receive benefits under the proper reimbursement rate for services under the Participating Physicians Schedule Medicare Part B for 2007, not to include OPPS and/or some other methodology, not authorized by §627.726 (5)(a)(2)(f), (a)(3), and/or (a)(4) Florida Statutes.
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