19 Fla. L. Weekly Supp. 874a
Online Reference: FLWSUPP 1910PASTInsurance — Personal injury protection — Discovery — Medical provider’s motion to limit discovery of payments received by medical provider from HMOs, PPOs, and self-pay patients is granted where legislature has defined minimum statutory reimbursement as 200% of Medicare Part B fee schedule, and evidence of payments received by provider that are less than that amount are irrelevant to issue of reasonableness of charges — Further, court will not permit insurer to abandoned its position, maintained throughout litigation, that it had properly limited reimbursement under permissive fee schedule of section 627.736(5)(a)2
PAN AM DIAGNOSTIC SERVICES, INC., D/B/A, PAN AM DIAGNOSTIC OF ORLANDO, (Joel Pasterin), Plaintiff(s), vs. METROPOLITAN CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-04683 COCE (55). July 11, 2012. Sharon Zeller, Judge.
ORDER GRANTING PLAINTIFF’SMOTION TO LIMIT DISCOVERY
THIS CAUSE having come on to be heard before me on Plaintiff’s Motion to Limit Discovery and the Court having reviewed Plaintiff’s Motion to Limit Discovery, the court file; reviewed the relevant legal authorities; and heard the argument of counsel; and being otherwise fully advised in the premises, the court finds as follows:
1. Plaintiff filed the instant breach of contract action alleging Defendant breached the policy of insurance issued to Plaintiff’s assignor by limiting reimbursement for Plaintiff’s services pursuant to Fla. Stat, §627.736(5)(a)(2) without having specifically elected to utilize the permissive payment methodology in its policy.
2. Defendant alleged as its affirmative defense that it “properly paid all benefits due and owing for the services rendered, in accordance with the Florida No-Fault Statute Fla. Stat. §627.736(5)(a)(2) and (f), and the Center for Medicare and Medicaid Services.”
3. On or about December 1, 2011, Defendant propounded its Request to Produce, requesting copies of “any and all documentation, including but not limited to Explanation of Benefits and checks evidencing payment received for any bill with charges” for the CPT codes at issue submitted to:
(1) Any patient’s HMO from September 1, 2008 to September 1, 2009;
(2) Any patient’s PPO from. September 1, 2008 to September 1, 2009;
(3) Medicare from September 1, 2008 to September 1, 2009;
(4) Medicaid from September 1, 2008 to September 1, 2009;
(5) Workers’ compensation carriers from September 1, 2008 to September 1, 2009; and
(6) Any self-pay patient from September 1, 2008 to September 1, 2009.
4. Plaintiff timely objected to Defendant’s requests related to payments received from HMOs, PPOs, and self-pay patients on the grounds Defendant’s requests are “overly broad, unduly burdensome, irrelevant and not reasonably calculated to lead to admissible evidence. Comparisons to private health care insurance reimbursements are inapplicable to No-Fault reimbursements as private health care insurers maintain networks of thousands of patients who utilize the insurers’ network of providers as a means to locate medical providers. Defendant did not utilize any such network. In seeking this information, Defendant attempts to reap the same rewards and benefits as private health insurers without providing the same benefit and as such, no comparison may be made. Additionally, Defendant chose to reimburse Plaintiff at the permissive limitation of Fla. Stat. 627.736(5)(a)(2) without considering any other source, making any other sources inapplicable.”
5. Plaintiff stated it possessed none of the documents requested regarding Medicare, Medicaid, and Workers’ Compensation.
6. The Defendant scheduled a hearing on Plaintiff’s objections which occurred on March 7, 2012. This Court reserved ruling at that time.
7. On March 12, 2012, this Court heard argument on Plaintiff’s Motion for Final Summary Judgment, and ruled in favor of the Plaintiff on the legal, issue that Defendant’s application of Fla. Stat. §627.736(5)(a)(2) in reimbursing Plaintiff’s services did not satisfy its payment obligation under the policy in accordance with Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA, 2011) [36 Fla. L. Weekly D1062a]; Geico Indemnity Company v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2012) [36 Fla. L. Weekly D2597a]; and DCI MRI, Inc. v. Geico Indemnity Company, 79 So. 3d 840 (Fla. 4th DCA, 2012) [37 Fla. L. Weekly D170e]. As to the issue of the reasonableness of charges, this Court reserved ruling pending ruling on Plaintiff’s objections to Defendant’s requests for production.
8. Thereafter, on June 5, 2012, this Court issued its Order sustaining Plaintiff’s objections under, the authority of Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA, 2008) [33 Fla. L. Weekly D2015a].
9. Despite this Court’s June 5, 2012 Order, Defendant continues to maintain it is entitled to discover payments accepted from sources such as HMOs, PPOs, Medicare, and Self-Pay patients.
10. Plaintiff filed its Motion to Limit Discovery seeking a protective Order pursuant to Fla. R. Civ. P. 1.280, and argues that, as a matter of law, any evidence of payments in amounts below the statutory minimum defined by Fla. Stat. §627.736(5)(a)(2) are irrelevant. For the reasons set forth below, this Court agrees with the Plaintiff.Fla. Stat. 627.736(5)(a)(2) is the Statutory Minimum
11. In accordance with this Court’s ruling that Defendant was not authorized to limit reimbursement pursuant to Fla. Stat. §627.736(5)(a)(2), this Court further finds Fla. Stat. §627.736(5)(a)(2) is the statutory minimum coverage for reimbursement.
12. As established in Kingsway, Virtual Imaging, and DCI, supra, the 2008 PIP statute provides both a mandatory and permissive method of reimbursement. In ruling insurers must specifically elect the permissive method of reimbursement in their policies, these courts reasoned that payments of amounts equal to the 200% of Medicare Fee Schedule set forth in Fla. Stat. §627.736(5)(a)(2) cannot satisfy an insurer’s obligation to pay a reasonable amount.
13. Fla. Stat. §627.736(5)(a)(1) provides:
“With respect to whether a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”
14. Thus, the factors which may he considered in determining a reasonable amount must be relevant to the reasonableness of the service. Pursuant to Fla. Stat. §627.736(5)(a)(2), an insurer “may limit” reimbursement to 80% of 200% of the allowable amount under Medicare Part B. However, Fla. Stat. §627.736(5)(a)(3) provides:
“For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.”
15. The limited reimbursement calculation pursuant to Fla. Stat. §627.736(5)(a)(2) is the minimum amount insurers may reimburse. See Nationwide Mut. Fire Ins. Co. v. AFO Imaging, Inc., 71 So. 3d 134 (Fla. 2d DCA, 2011) [36 Fla. L. Weekly D1463b] (Fla. Stat. §627.736(5)(a)(2) and (5)(a)(3) were expressly designated as the operative fee schedule to be utilized in computing the minimum amount insurers are statutorily allowed to reimburse); Windsor Imaging a/a/o Roneil Morris vs. State Farm Insurance, 19 Fla. L. Weekly Supp. 215b (Broward County Court, December 12th, 2011)(“The No-Fault Act set the floor with respect to the minimum reimbursement under Florida Statute 627.736(5)(a)(2)”).
16. Pursuant to the statute, even if an insurer properly elects Fla. Stat. §627.736(5)(a)(2) as its payment methodology in its policy in order to limit reimbursement otherwise reasonable amounts, any payment less than 200% of the 2007 Medicare Part B Fee Schedule (which is the statutory minimum) is prohibited. The legislature has defined the statutory minimum an insurer must pay. Therefore, because payment cannot be less than 200% of the 2007 Medicare Part B Fee Schedule, any evidence of payments the provider has received which may be below that amount are irrelevant by operation of Fla. Stat. §627.736(5)(a)(1) and Fla. Stat. §627.736(5)(a)(2).
17. Further, in DCI MRI, Inc. v. Geico Indemnity Co., 79 So. 3d 840 (Fla. 4th DCA) [37 Fla. L. Weekly D170e], the court recognized that Fla. Stat. §627.736(5)(a)(2) is a limit on what is otherwise a higher, reasonable amount under Fla. Stat. §627.736(5)(a)(1)(“The fact that the 2008 statute would allow the insurer to opt for another lesser amount does not permit the insurer to do so when the policy specifically provides for payment of 80% of reasonable expenses incurred. Simply indicative the insurer would pay in accordance with the law ‘as amended,’ is insufficient to place the insured on notice of its intent to pay less than 80% of reasonable expenses incurred as stated in the policy.”) (Emphasis added). See also Geico Indemnity Company v. Virtual Imaging Services, Inc., 79 So. 3d 55, 58 (Fla. 3d DCA, 2012) [36 Fla. L. Weekly D2597a](“As section Fla. Stat. §627.736(5)(a)(2) provides insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount”). Thus, insurers have the option of reimbursing a reasonable amount, or, if specifically elected in the policy, a less than reasonable amount calculated pursuant to Fla. Stat. §627.736(5)(a)(2).
18. Defendant has alleged and maintained throughout this litigation that it properly reimbursed Plaintiff pursuant to Fla. Stat. §627.736(5)(a)(2). The Defendant made the decision to elect this payment methodology in determining a “reasonable” amount to reimburse Plaintiff for its services and relied on this methodology throughout this litigation.
19. This Court has already ruled as a matter of law that the Defendant’s limited payment under Fla. Stat. §627.736(5)(a)(2) did not satisfy its reimbursement obligation. Defendant now seeks discovery from the Plaintiff in order to attempt to create a question of fact as to the reasonableness of Plaintiff’s charges. The discovery Defendant seeks, however, cannot create a question of fact because the legislature has defined the floor of required minimum statutory reimbursement. This Court cannot consider evidence of payments less than 200% of 2007 Medicare Part B as any such payments are irrelevant as a matter of law. Further, this Court will not permit Defendant to abandon its position in which it alleged and maintained it properly limited reimbursement under Fla. Stat. §627.736(5)(a)(2) to now to engage in discovery which would amount to nothing more than a “fishing expedition” which is not permitted and well within the purview of Fla. R. Civ. P. 1.280. State Farm Mutual Automobile Insurance Co. v. Parrish, 800 So.2d 706 (Fla. 5th DCA, 2001) [26 Fla. L. Weekly D2831a]; Toledo v. Publix Supermarkets Inc., 30 So.3d 712 (Fla. 4th DCA, 2010) [35 Fla. L. Weekly D747a].
20. This Court does not address the relevance of Medicare, Medicaid, and Workers’ Compensation payments as Plaintiff indicated it is not in possession of same.
Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion to Limit Discovery and Motion for Protective Order pursuant to Fla. R. Civ. P. 1.280 is hereby GRANTED.
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