22 Fla. L. Weekly Supp. 627a

Online Reference: FLWSUPP 2205BARRInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issue of reasonableness of medical charge where affidavits are conclusory and self-serving — Fact that Medicare, workers’ compensation, and health insurance pay less than amount billed by provider is insufficient to create triable issue as to reasonableness of charge

FLORIDA WELLNESS & REHAB CENTER, INC., (a/a/o Pedro Barrios), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-12074 SP 25 (01). June 19, 2014. Gloria Gonzalez-Meyer, Judge. Counsel: Armando Brana; and Marlene S. Reiss, Marlene Reiss, P.A., Miami, for Plaintiff. Luis Perez, Coral Gables, for Defendant.

REVERSED. FLWSUPP 2501BARR (State Farm Mut. Auto. Ins. Co. v. Florida Wellnes & Rehab. Center, Inc., 14-386 AP, 4-25-2017).ORDER GRANTINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on April 28, 2014, on Plaintiff’s Motion for Summary Judgment, the Court having reviewed the Motion for Summary Judgment and purported opposing evidence, having reviewed all pertinent documents, and having heard argument of counsel, GRANTS the Plaintiff’s Motion for Summary Judgment. Accordingly, it is hereby

ORDERED AND ADJUDGED:

that the Plaintiff’s Motion for Summary Judgment is hereby GRANTED.

This case involves Plaintiff Florida Wellness & Rehab’s claim for Personal Injury Protection (PIP) benefits, as the valid assignee of State Farm’s insured, Pedro Barrios.

On July 13, 2012, the Plaintiff moved for summary judgment on the issues of reasonableness of the bills, medical necessity of the treatment, and relatedness of the injuries to the subject accident.

At the hearing on Plaintiff’s motion, Defendant State Farm stipulated to the issues of medical necessity and relatedness. The Court entered an Order on April 28, 2014, which granted the Plaintiff’s motion, in part, on those two issues and indicated that a separate order would be entered on the remaining issue of the reasonableness of the bills. This Order addresses that remaining issue and Final Judgment will be entered separately hereafter.

As an initial matter, it is undisputed that State Farm has not made a clear and unambiguous election of the reimbursement methodology set forth in §627.736(5)(s)2.f., which would otherwise allow State Farm to utilize the Medicare Part B fee schedules contained in that provision to determine the reasonableness of the Plaintiff’s bills and pay accordingly.Evidence of the Plaintiff’s Prima Facie Case

Pertinent to the issue of reasonableness, the affidavit of Dr. Roy Canizares, on which the Plaintiff relies to prove the reasonableness of its charges, states in relevant part:

14. In my numerous years as a physician, I have reviewed hundreds of medical bills from numerous like kind medical providers in this community. I also own my own medical facility and likewise submit medical charges for the same or similar CPT codes at issue in this case. I am knowledgeable about what a reasonable reimbursement amount is for the CPT codes billed by the Plaintiff in this case. I have gained personal knowledge of reimbursement by Florida P.I.P. insurers for the medical services commonly submitted in connection with P.I.P., claims in the South Florida community, including but not limited to Miami-Dade County.

15. I have reviewed and I am familiar with and have personally reviewed the P.I.P. claim, medical services and prices of the medical services that are in dispute in the litigation pending before this Honorable Court. Based on my background, training and experience and education as a physician, it is my opinion in comparison with the reasonableness of reimbursements, that Plaintiff’s medical charges are in line with community standards.

16. That the medical charges of $8,647.22, are reasonable and what is customarily charged in the community for like medical services. I have reviewed the medical charges with the Physician’s Fee and Coding Guides for the applicable year(s), as well as, Medical Fees in the United States fee guides for the applicable year(s), the charges and reimbursements are in line with community standards and within the range of reasonable P.I.P., reimbursements. Also, I have reviewed medical charges from other medical providers providing like medical services such as Miami Medical Group, Inc., Professional Medical Group, Inc., Federal Medical Group, Inc., etc. . . and the charges are likewise reasonable and customary, as well as, the corresponding reimbursement amounts to the relevant information to CPT codes billed by the Plaintiff as reflected in the Health Insurance Claims Forms (HCFA).

17. In addition, the amount billed in this case as reflected in the Health Insurance Claims Forms (HCFA) equate to payments accepted by this provider herein in No Fault cases as reimbursements. The reimbursement amounts as billed for each CPT code herein as reflected in the Health Insurance Claims Forms (HCFA(s) equate to reimbursement levels in the community for like kind medical providers and facilities. I have consider [sic] various federal and state fee schedules applicable to automobile and other insurance coverages in the determination of the amounts as charged by the Plaintiff and the corresponding reimbursement amounts to be paid herein by the applicable insurers to the Plaintiff which are also in line with community standards.

The Court finds that Dr. Canizares’s affidavit is sufficient to establish the Plaintiff’s prima facie case as to the reasonableness of the Plaintiff’s bills.Defendant’s Purported Opposing Evidence

To oppose the Plaintiff’s summary judgment evidence, State Farm filed the affidavits of Nicole Bonaparte and Darrell Spell.¹1. Nicole Bonaparte

Ms. Bonaparte is a so-called Certified Professional Coder and Certified Professional Coder Instructor. The basis of Ms. Bonaparte’s opinions are as follows:

11. As a medical billing and coding professional, I have reviewed thousands of CMS 1450 and CMS 150 claim forms, medical billing statements, and medical records from all parts of Florida, including South Florida. In this process, I have become familiar with rates charged by medical providers in South Florida for their medical services. I am also familiar with the amounts reimbursed/paid to providers in South Florida by Florida Worker’s Compensation, Tricare, Humana and Aetna, and I have knowledge regarding the general range of the pricing of rates of the various health insurers in South Florida.

12. I am familiar the process [sic] and analysis utilized by the Center for Medicare and Medicaid Services (CMS) in determining the amounts CMS allows as payment to physicians and medical care providers in Medicare Part B.

13. In my experience and based upon my training as well, the Medicare Part B Schedule is the benchmark for the setting of reimbursement levels and amounts in the medical services field. By this I mean that the Medicare Part B Fee Schedule is the most widely used reference point by other payors when those payors set or determine their rates/reimbursement levels.

14. Medicare Part B is the single largest payor of medical services in the United States and is a reimbursement level in the field of medical services.

15. The methodology I use in analyzing whether a certain amount is a reasonable charge involves reviewing various references and data resources. These typically include the Federal Medicare Fee Schedule, the Florida’s Worker’s Compensation Fee Schedule, Tricare, and health insurer reimbursement/payments. . . .

19. In this matter, I did not just consider the Medicare Part B amounts in assessing the reasonableness of the charges and State Farms payment. I’ve also considered the Florida’s Worker’s Compensation Fee Schedule, Tricare, Aetna and Humana.

The ensuing analysis then demonstrates that Ms. Bonaparte actually applied only the Medicare Part B, Florida Workers Compensation, and Tricare fee schedules, without regard to usual and customary charges and payments accepted by the Plaintiff in this dispute or reimbursement levels made to other PIP providers in the community that do not involve Medicare, Workers Compensation or negotiated contract rates, i.e., HMOs, PPOs, etc.2. Darrell Spell

Darrell Spell is a so-called “Consulting Actuary.” Mr. Spell’s opinion states, in pertinent part:

13. . . . For this analysis, I have specifically reviewed the MarketScan Research Database, the Medicare Physician Fee Schedule, The Florida Worker’s Compensation Schedule, and the New Jersey Physician Fee Schedule.²

Applying the above, like Ms. Bonaparte’s opinion, Mr. Spell’s opinion is without regard to usual and customary charges and payments accepted by the Plaintiff in this dispute or reimbursement levels made to other PIP providers in the community.Conclusions of Law

Because it is undisputed that the provisions of §627.736(5)(a)2.f., Fla. Stats. (2008) do not apply in this case, since State Farm did not elect that alternative methodology as its method for determining the reasonableness of medical bills and paying in accordance therewith, the relevant statutory provision for determining the reasonableness of the Plaintiff’s bills is §627.736(5)(a)1., Fla. Stats. (2008).

That provision provides the factors to take into consideration when determining the reasonableness of medical bills. It states, in pertinent part:

(a) 1. . . . With respect to 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.

Fla.Stats. §627.736(5)(a)1. (emphasis added).

This Court has previously ruled that §627.736(5)(a)1. does not contemplate consideration of Medicare fee schedules, or negotiated contract rates because neither Medicare Part B Fee Schedules, HMO negotiated contract rates, nor PPO negotiated contract rates, or other negotiated contract rates, are relevant in determining whether a particular provider’s charges are reasonable. See Gables MRA, Inc., (a/a/o Teresa Morales) v. United Auto. Ins. Co., Case No. 11-11687 SP 25 (01) [22 Fla. L. Weekly Supp. 740a].

In short, that ruling — which this Court stands by in this case — is grounded upon the fact that Medicare is not “insurance,” but rather is a federal entitlement program. See American Risk Assurance Co. v. Benrube, 407 So.2d 993 (Fla. 3d DCA 1981)(§627.736(4)’s non-duplication provision does not provide credit for Medicare payments; “The waiver authority is consistent with prior judicial determinations that Medicare is a social welfare program and not an insurance or reimbursement plan within the original meaning of these terms.”); Atkins v. Allstate Ins. Co., 382 So.2d 1276 (Fla. 3d DCA 1980)(“[T]he issue has been well settled in other jurisdictions that Medicare is social welfare legislation passed by the Congress to aid the general health and welfare of those over 65 years of age and is not an ‘insurance program’ within the ordinary meaning of the words.”); Florida Assoc. of Rehab. Facilities, Inc. v. State of Fla. Dept. Of Health, 225 F.3d 1208 (11th Cir. 2000).

The case upon which the Plaintiff principally relies, an Eleventh Circuit appellate opinion, agrees with the above law and specifically states, “Medicare Fee Schedules are not relevant in PIP cases, and should not be used.” Hialeah Medical Assoc., Inc. (a/a/o Ana Lezcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Jud. Cir., March 7, 2014). Since Medicare Fee Schedules are not relevant to determine the reasonableness of a medical provider’s bill under the PIP Statute, absent a specific election of §627.736(5)(a)2.f., an expert’s reliance on those Fee Schedules is not competent or relevant testimony to oppose summary judgment. See §90.402 (“All relevant evidence is admissible, . . . .”)(emphasis added); Fla.R.Civ.P. 1.510 (“Supporting and opposing affidavits . . . shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”)

To the extent that Florida’s Workers Compensation Fee Schedule is also a fee schedule contained within §627.736(5)(a)2.f., reliance upon the Workers Compensation Fee Schedule is also misplaced, absent an election of the §627.736(5)(a)2.f. methodology. If the Legislature intended for §627.736(5)(a)1. to include the Medicare and Worker’s Compensation Fee Schedules, there would have been no need for the Legislature to enact §627.736(5)(a)2.f. in 2008. Therefore, both Mr. Spell’s and Ms. Bonaparte’s affidavits rely on irrelevant fee schedules.

Moreover, negotiated contract rates, like HMOs, PPOs and Tricare are not relevant unless the insurer and provider in suit have entered into such a contract. See Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a]. The irrelevance of negotiated contract rates is evident by the fact that parties to such contracts have provided consideration for the negotiated rates. In exchange for reduced rates, an insurer will waive deductibles or provide additional benefits to their insureds. See Holy Cross, supra. In exchange for accepting such reduced rates, a medical provider enjoys a steady stream of patients provided to it by the insurer. Id.³

Similarly, this Court determines that an expert’s reliance on fee schedules that are legislated in other states, like New Jersey — the fee schedule on which Mr. Spell relies — are not relevant to what community standards are in Miami-Dade County. That’s why §627.736(5)(a)1. makes specific reference to “the community.” Id. Reimbursement rates in other communities simply are not relevant.This Court Has Previously Determined That theOpinion of Nicole Bonaparte Does Not Create Any FactQuestions to Dispute Reasonableness of Charges

This Court has previously determined that the affidavit of Nicole Bonaparte does not create any fact question regarding the reasonableness of a medical provider’s charges. See Miami Medical Group, Inc. (a/a/o Yamila Fernandez) v. State Farm Mut. Auto. Ins. Co., Case No. 12-17696 SP 25 (01).

Based on the same reasoning, the Court finds that Ms. Bonaparte’s affidavit creates no fact questions to preclude summary judgment. In Fernandez, this Court stated:

In her affidavit and testimony, Ms. Bonaparte completely excludes considerations of evidence of usual and customary charges and payment accepted by the provider. Similarly, she excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Defendant’s expert’s ultimate opinion excludes any data which could cause an increase in the outcome and clearly, without any methodology, cherry picks whatever supports her opinion. Interestingly, Ms. Bonaparte relies on statistics involving payment rates for two insurers’ “out-of-network” claims, without setting forth why she is choosing these two insurers and why the Court should find that this methodology of selection is sufficiently reliable for the Court to allow this issue to go the jury. [sic] This is all the more glaring when one notes that Aetna, one of the two “out-of-network” insurers listed, pays less for out-of-network claims than to in-network providers, and there is absolutely no data provided as to the greater amount paid to in-network providers. Moreover, Ms. Bonaparte’s opinion is misleading because it is fairly common knowledge that an insured pays more out-of-pocket to out-of-network providers, and there is no analysis in Ms. Bonaparte’s affidavit as to how this co-payment affects the insurer’s decision. . . .

As noted previously, there is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that the underlying data to support this conclusion be disclosed. . . . In addition, the Plaintiff is neither a Medicare, Medicaid, worker’s compensation or a health insurance provider as it pertains to Ms. Bonaparte’s affidavit filed herein.

Fernandez, supra.Persuasive Court Orders

The Court has been presented with, and has reviewed, a number of court orders entered by numerous county court judges in Miami-Dade and Broward, all of which deal with the identical State Farm experts as those presented in this case, Mr. Spell and Ms. Bonaparte. Multiple courts have determined that neither Mr. Spell’s nor Ms. Bonaparte’s opinions create any fact questions with regard to whether a medical provider’s charges are reasonable or not.

The Court finds those orders persuasive and follows the rationale set forth therein. See RDC Imaging Corp. (a/a/o Jean Francis Edner) v. State Farm Mut. Aut. Ins. Co., Case No. 12-17145 COCE 53 (Broward Cty. Ct., September 9, 2014)(“Ms. Bonaparte completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, she excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion that an amount up to 200% of Medicare is a reasonable charge.”); Miami Medical Group, Inc. (a/a/o David H. Arosteguy) v. State Farm Mut. Aut. Ins. Co., Case No. 12-21787 SP 25 (Miami-Dade Cty. Ct., December 18, 2013)(“The affidavit of Nicole Bonaparte is insufficient to create an issue of fact.”); Palm MRI Diag. Imaging (a/a/o Indira Gomez) v. State Farm Mut. Auto. Ins., Case No. 13-012944 (Broward Cty. Ct., November 21, 2013)(“Ms. Bonaparte does not qualify as an expert and her affidavit is insufficient to create a question of fact for the reasons set forth on the record.”); B&D Chiro., Inc., d/b/a Chiro. Works (a/a/o Isidora Guerrero) v. Lib. Mut. Ins. Co., 19 Fla. L. Weekly Supp. 1091a (Broward Cty. Ct., August 24, 2012)(“The Court finds that the affidavit of Nicole Bonaparte, . . . , is conclusory and self-serving, and does not create a genuine issue of material fact. . . .”); Hallandale Open MRI, Inc. (a/a/o David Cabrera) v. State Farm Mut. Auto. Ins. Co., Case No. 12-004675 (Broward Cty. Ct., December 12, 2013)(“Mr. Spell’s affidavit is insufficient, conclusory and self serving. The fact that Medicare Workers Comp and Health Insurance pay less than the billed amount is insufficient to create a triable issue even where the Plaintiff accepts these payors.”); Miami Medical Group, Inc. (a/a/o Janel Almulna) v. State Farm Mut. Auto. Ins. Co., Case No. 12-24932 SP 25 (2) (Miami-Dade Cty. Ct., March 31, 2014 (“The Court finds that Darrell Spell’s affidavit does not create a genuine issue of material fact to contest the reasonableness of the medical charges.”); Hallandale Open MRI, LLC (a/a/o Richard Ayer) v. State Farm Mut. Auto. Ins. Co., Case No. 13-002964 CONO 73 (Broward Cty. Ct., April 7, 2014) [21 Fla. L. Weekly Supp. 837a](“The fact that Medicare allows less than the amount billed by the Plaintiff in this case is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable as to price.”); DPI of North Broward (a/a/o Aquilina Ligot) v. State Farm Mut. Aut. Ins. Co., Case No. 12-5576 COCE 53 (Broward Cty. Ct., February 29, 2014)(“Mr. Spell completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, he excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion that an amount up to 200% of Medicare is a reasonable charge.”)

This Court has made no determination regarding the competency of State Farm’s purported experts to opine on reasonableness as it relates to the Daubert standard.⁴ The Court finds that the experts’ affidavits create no question of fact as to the reasonableness of the Plaintiff’s bills because the basis of both experts’ opinions are not relevant to prove that the Plaintiff’s bills are not reasonable. Moreover, given that “reasonableness” is a range of numbers, an expert’s opinion does not create a fact question simply because the expert opines that a number lower than that charged by a medical provider, but within the range of “reasonable.”

In order for a fact question to exist, an insurer must demonstrate with admissible evidence that a medical provider’s bill is not within the range of “reasonable.”

Accordingly, it is hereby

ORDERED AND ADJUDGED:

that the Plaintiff’s Motion for Summary Judgment is hereby GRANTED.

__________________

¹At the hearing, State Farm’s counsel indicated that State Farm was only relying on the affidavit of Mr. Spell. However, State Farm also filed the affidavit of Ms. Bonaparte, but made no argument regarding her affidavit at the hearing. Although it appears that State Farm abandoned any reliance on Ms. Bonaparte’s affidavit, the Court must consider all record evidence on summary judgment to determine the existence or absence of any fact questions to send to the jury. Therefore, the Court rules on both affidavits and finds that neither affidavit creates any question of fact for a jury.

²The “MarketScan” database includes a number of negotiated contract rates. Mr. Spell has acknowledged that the MarketScan information he relies on is complied solely from the insurance industry, and is comprised of only that information that the insurers desire to disclose. See DPI of North Broward (a/a/o Aquilina Ligot) v. State Farm Mut. Aut. Ins. Co., Case No. 12-5576 COCE 53 (Broward Cty. Ct., February 29, 2014).

³“PPO policies are in essence a managed care option to insurance,” in which insurers encourage policyholders to choose a “preferred” provider through economic incentives such as no copayments, lower deductibles, and higher coverage, providing a pool of patients to the preferred provider. Holy Cross, supra at 336, n.5.

⁴Although the Court makes no determination as to the experts’ competency to render expert opinions in this matter under the Daubert standard, the Court notes that Mr. Spell has been stricken as an expert on a finding that his testimony does not meet that standard. See e.g. Pembroke Pines MRI, Inc. (a/a/o Ferney Calderon) v. State Farm Mut. Auto. Ins. Co., Case No. 12-21925 COCE 53 (Broward Cty. Ct., October 30, 2013); Hallandale Open MRI, LLC (a/a/o Richard Ayer) v. State Farm Mut. Auto. Ins. Co., Case No. 13-002964 CONO 73 (Broward Cty. Ct., April 7, 2014) [21 Fla. L. Weekly Supp. 837a]. The entirety of court orders striking Mr. Spell as an expert witness, as unqualified to opine on the reasonableness of medical bills, are too numerous to list herein. Suffice it to say that Mr. Spell’s testimony has been soundly rejected by county courts, particularly in Broward County.