20 Fla. L. Weekly Supp. 596b
Online Reference: FLWSUPP 2006VISCInsurance — Personal injury protection — Coverage — Insurer cannot rely on statutory permissive Medicare Part B fee schedule where insurer did not clearly and unambiguously adopt that payment methodology in its policy, and clear language in policy provides that insurer will pay 80% of reasonable expenses
RIVERO DIAGNOSTIC CENTER, INC., as assignee of Viscarra, Maria E., Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-17077 SP 25. February 7, 2013. Gloria Gonzalez-Meyer, Judge. Counsel: Rita M. Baez, Coral Gables; and Kenneth B. Schurr, Kenneth B. Schurr, P.A., Coral Gables, for Plaintiff. Louis Schulman, Dutton Law Group, PA, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARYJUDGMENT REGARDING LIMITINGREIMBURSEMENT OF PROVIDER CHARGES INACCORDANCE WITH FEE SCHEDULES
THIS CAUSE having come to be heard before the Court on hearing on January 28, 2013 on Defendant’s Motion for Summary Disposition or Summary Judgment and, having reviewed the motions and having heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
The Plaintiff provided an MRI to the Defendant’s insured on October 18, 2010 after she was involved in a car accident on July 30, 2010. There is no dispute a PIP policy of insurance was issued by the Defendant which was in full force and effect on the date of the accident, and which inured to the benefit of the claimant. The Plaintiff submitted its bill to the Defendant for payment. The Plaintiffs bill was for $2,000 for CPT code 73721 for date of service October 18, 2010. The Defendant paid the bill at 80% of 200% of the Medicare Part B fee schedule allowance. The Plaintiff seeks to recover the difference between 80% of the amount billed and the amount already paid by the Defendant ($900.03). Plaintiff submitted a statutory pre-suit demand letter to the Defendant after which no additional payments were made. This action followed.
The Defendant claimed it paid the Plaintiffs bills in accordance with F.S. 627.736(5) and its policy, which — according to the Defendant — permitted it to pay the bills based on the Medicare Part B fee schedule.
Under Florida law, if an insurer specifically and unambiguously incorporates its election to utilize the Medicare Part B fee schedule reimbursement limitations in its policy of insurance, then the provider’s reimbursement for services would be limited to 80% of 200% of Medicare Part B. Defendant contends its policy specifically and unambiguously incorporated such an election.
In support of its position, Defendant moved for Summary Judgment claiming it properly incorporated a Medicare Part B fee schedule election in its policy. In opposition, the Plaintiff argued that the subject policy of insurance did not specifically and unambiguously incorporate the Medicare Part B fee schedule. In fact, Plaintiff asserts that the policy specifically provides that Defendant will pay 80% of the reasonable medical expenses. Plaintiff contends that Defendant cannot issue payment based on the Medicare Part B fee schedule because Mercury’s policy of insurance, including the Personal Injury Protection Endorsement FL U-85 ed. 5/20/10, does not specifically and unambiguously incorporate the permissive language of Fla. Stat. 627.736(5)(a)(2)a-f (2008), which provides a PIP insurer with the option to limit reimbursement to the Medicare Part B Fee Schedule.
This court has reviewed the Defendant’s policy of insurance and the applicable endorsement (FL-U85 ed. 5/2010). The policy endorsement at issue defines medical benefits as “80% of all reasonable expenses allowed by the No-Fault Law, subject to the applicable fee schedules and payments limitations, for medically necessary. . . .” There is no specific definition of reasonable expenses provided in the endorsement or anywhere in the policy, nor is there any specific reference to a particular fee schedule.
The applicable endorsement states “we will only pay for medical benefits: (b.) for medically necessary services, supplies, treatment and care that do not exceed the maximum reimbursement allowance as set forth in the applicable fee schedules and payment limitations, and other payment guidelines, in the No-Fault Law, and any schedules and limitations under federal or state law for medical expenses.” Again, the policy fails to describe or identify which “applicable fee schedules . . .” or “which payment guidelines . . . . ” Lastly, the endorsement states “as authorized by the No-Fault Law, we may use various sources of information to decide if any medical expense is reasonable and necessary and caused by an accident. These sources include but are not limited to: . . .(c) Computer programs and databases for the analysis of medical treatment and expenses; and (d.) Published sources of medical expense information.” A specific and unambiguous election to utilize the Medicare Part B fee schedule would contradict the necessity to refer to a computer program or database because a specific election would simply and clearly state that the insurer intended to limit reimbursement to 80% of 200% of the Medicare Part B fee schedule.
This court is bound by the Fourth District Court of Appeal in Kingsway Amigo v. Ocean Health. 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] and American Independent Insurance Company v. Gables Ins, Recovery, 19 Fla. L. Weekly Supp. 14b (Fla. 11 Cir. Court 2011). In Kingsway the court held that where an insurer does not make a specific election the insurer is obligated to pay 80%) of the reasonable medical expenses. The policy in Kingsway made no reference to the permissive methodology set forth in subsection 627.736(5)(a)(2). The court held that an insurer seeking to avail itself of the safe-harbor option must clearly and unambiguously indicate in the language of the policy the intent to do so. Id. at 68. Again in American Independent, the court found the policy of insurance did not clearly and unambiguously incorporate the permissive statutory fee schedule within its policy of insurance and as a result, found American Independent was not entitled to limit reimbursement to the permissive statutory fee schedule. See also GEICO Indemnity Company v. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] and USAA v. DPI of North Broward, LLC, 19 Fla. L. Weekly Supp. 925 (Fla. 17th Cir. Court 2012).
In this case, the Court finds the policy clearly states it will pay 80% of all reasonable expenses and to determine what is a reasonable expense the Defendant may use various sources of information including, but not limited to, computer programs, databases and published sources of medical expense information, etc. Defendant’s reliance on the policy language which states “subject to the applicable fee schedule and payment limitations allowed by the No-Fault law” is not a clear and unambiguous election to utilize the Medicare Part B fee schedule. In fact, Defendant’s policy language belies its argument because the policy provides that the Defendant may use various sources of information to determine if a charge is reasonable including the use of computer programs and databases as well as published sources of medical expense information. If there were a specific and unambiguous Medicare Part B election contained in the policy the Defendant would simply pay 80% of 200% of Medicare Part B fee schedule and there would be no reason whatsoever to refer to computer programs, databases or published sources for medical expense information to determine if a particular charge was reasonable.
In sum, the Defendant’s policy of insurance fails to clearly and unambiguously elect to utilize the Medicare Part B fee schedule as a limitation on reimbursements for medical expenses under the PIP coverage. As such, the Defendant’s Motion is hereby DENIED.
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