19 Fla. L. Weekly Supp. 126b
Online Reference: FLWSUPP 1902GOSHInsurance — Personal injury protection — Coverage — Where insurer elected to reimburse medical provider pursuant to permissive statutory fee schedule and applied Outpatient Prospective Payment System cap, insurer cannot belatedly contest reasonableness of charge submitted by provider following decision by district court of appeal disallowing use of OPPS cap — Once insurer elected to use permissive fee schedule, reasonableness of charge became irrelevant and only issue is whether insurer correctly reimbursed provider under fee schedule
NEW SMYRNA IMAGING, LLC a/a/o BERNARD GOSHAY, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2010-21278-CONS. September 7, 2011. Honorable Shirley A. Green, Judge. Counsel: Kimberly Simoes, The Simoes Law Group, P.A., Deland, for Plaintiff. John Morrow, Conroy Simberg, for Defendant.
FINAL JUDGMENT GRANTING PLAINTIFF’SMOTION FOR SUMMARY DISPOSITION
This matter came before the Court for hearing on August 15, 2011, and the Court being fully apprised in the premises finds as follows:
1. Plaintiff’s Motion for Final Summary Disposition is GRANTED.
2. It is undisputed that the Defendant elected to utilize 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B as reimbursement for No Fault bills pursuant to F.S. 627.736(5)(a)(2)(f).
3. It is undisputed that in applying the reimbursement rate allowed under 627.736(5)(a)(2)(f), the Defendant calculated 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B for the MRI services submitted by the Plaintiff and applied the OPPS cap to the reimbursement rate.
4. The Defendant concedes that it utilized the OPPS cap in calculating the reimbursement amount for MRI services provided by the Plaintiff and the Defendant’s use of this cap resulted in a reduction in the 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B reimbursement rate for the MRI services submitted by the Plaintiff. Based upon the decision of Nationwide Mutual Automobile Ins. Co. v. AFO Imaging, Inc., __ So.3d __, 2011 WL, 2622311 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b], the Defendant has withdrawn its affirmative defenses related to the application of the OPPS cap to the statutory fee schedule found at 627.736(5)(a)(2)(f).
5. Pursuant to 627.736(5)(a)(2)(f), Defendant was entitled to limit reimbursement to the statutory schedule of maximum charges, regardless of the amount actually charged by providers.
6. Defendant utilized the statutory fee schedule set forth in 627.736(5)(a)(2) when making payments to MRI providers under the PIP statute. The election pre-supposes that the amount in the schedule is reasonable.
7. The Court finds that by the Defendant electing to utilize the reimbursement rate permitted by 627.736(5)(a)(2)(f), the only issue for determination by the Court is whether the Defendant paid the appropriate amount under the allowable amount under the participating physicians schedule of Medicare Part B.
8. The Court specifically rejects State Farm’s argument that it can belatedly contest the “reasonableness” of the charge submitted by the Plaintiff as an affirmative defense to the claim. The amount charged by the Plaintiff is irrelevant. Once State Farm elected to take advantage of the statutory fee schedule found at 627.736(5)(a)(2), there remained no factual dispute regarding the “reasonableness” of the charge and the only issue was the mathematical determination of the correct reimbursement amount under the fee schedule.
9. The Defendant did not reimburse the Plaintiff the correct amount under 627.736(5)(a)(2)(f) and the Plaintiff is entitled to additional compensation for the difference between 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B and the OPPS amount paid by State Farm.
10. Pursuant to the undisputed evidence, the Defendant paid $666.72 (200 percent of the OPPS rate @ 80%). The Defendant should have paid $852.02 (80% of $1066.28)(200 percent of the allowable amount under the participating physicians schedule of Medicare Part B), Thus, the damages are $186.30, representing the difference between the amount paid and the amount Defendant should have paid.
11. Plaintiff is entitled to prejudgment interest on this amount from February 11, 2010, to the date of this Final Judgment in the amount of $11.18.
12. Judgment is hereby entered in favor of Plaintiff in the total amount of $197.48.
13. This court reserves jurisdiction for an award of attorney’s fees and costs incurred by Plaintiff.
FOR WHICH LET EXECUTION ISSUE
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