22 Fla. L. Weekly Supp. 1063a
Online Reference: FLWSUPP 2209HEINInsurance — Personal injury protection — Discovery — Negotiated rate contracts between medical provider and HMOs, PPOs and other private insurance carriers are confidential, trade secret, proprietary documents that are not discoverable and cannot reasonably lead to discoverable evidence — Reimbursements accepted by provider from other PIP carriers are relevant and discoverable — Medicare reimbursement rates are not relevant in PIP case in which reasonableness of charges is at issue
PHYSICIANS MEDICAL CENTER, INC., A/A/O ROSEMARIE HEINE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-4611, Division CC-O. April 6, 2015. Ronald Higbee, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. Robert Lowry, Ramey & Kampf, Tampa, for Defendant.
ORDER DENYING IN PART AND GRANTING INPART DEFENDANT’S MOTION TO COMPEL BETTERRESPONSES TO REQUEST FOR PRODUCTION
THIS CAUSE came before the Court for hearing on March 11, 2015 on Defendant’s Motion to Compel Better Responses to Request to Production. The Court, having heard argument and been sufficiently advised in the premises, finds as follows:
The issue before the Court involves the discoverability of reimbursement amounts from third-party payors in a PIP case. The Defendant states that evidence of reimbursements by third-party payors is relevant to the reasonableness of the Plaintiff’s charges. Defendant also states that the statutory language specifically enumerates “reimbursements” as a relevant factor as to the reasonableness of the charge. Further, Defendant states that the rules of discovery are broader than the rules of admissibility and, therefore, even assuming the documents requested are not admissible, they are still discoverable pursuant to the Florida Rules of Civil Procedure 1.280(b)(1).
The Plaintiff objects to any disclosure of reimbursement amounts that are not probative of the reasonableness of the charge, which is the issue in this case. Further, Plaintiff objects that reimbursement amounts contained within negotiated rate contracts are confidential, proprietary and constitute trade secrets. This Court opts to follow the reasoning of its sister court in Rivero Diagnostic Center a/a/o Marisely Trujillo v. State Farm Mutual Automobile Insurance Company, 21 Fla. L. Weekly Supp. 804a (Order of Judge Don Cohn, Miami-Dade County Court dated April 23, 2014) in sustaining the Plaintiff’s objections with respect to discovery that goes to reimbursements by any payors other PIP carriers.
I — RELEVANCY
As to the contracts and information relating to reimbursements from HMO, PPO and private insurance carriers, the Defendant’s motion to compel is denied because evidence of these reimbursements made pursuant to negotiated rate contracts is not probative of the reasonableness of the Plaintiff’s charges. The issue in this case is whether the Plaintiff’s submitted charges are reasonable. Conversely, in a negotiated rate contract, the focus is not on the charge, but the reimbursement. Negotiated rate contracts (i.e. Blue Cross, Cigna, Aetna, Tricare, etc.) offer many incentives to medical providers in exchange for accepting lower reimbursements.1 Because of the inherent differences between a PIP contract (where reimbursement is based on reasonable charges), and negotiated rate contracts (where the price is set by agreement of the parties irrespective of the reasonableness of the charge), any evidence of reimbursement in a negotiated rate contract to disprove the reasonableness of the medical provider’s charges is comparing “apples to oranges” and not “apples to apples”.2
Conversely, the Court finds that reimbursements accepted by the Plaintiff as to other PIP carriers are relevant as said reimbursements go to the reasonableness of the Plaintiff’s charge; the exact issue in this case. See, Physician’s Medical Center, Jax, Inc. a/a/o Janice Primiano v. State Farm Mut. Auto. Ins. Co., 22 Fla L. Weekly Supp. 706a (Order of Duval County Court Judge Eleni Derke dated October 21, 2014)(finding reimbursement rates from PIP carriers to be relevant as it compares “apples to apples”); Physician’s Medical Center, Jax, Inc. a/a/o Debra Royal v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 456a (Order of Duval County Court Judge Scott Mitchell dated October 9, 2014).
II — STATUTORY LANGUAGE
Defendant next submits that it is entitled to these negotiated rate contracts based on the language of Florida Statutes §627.736(5)(a)1, which provides, 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.
As noted in Rivero, this Court concurs that §627.736(5)(a)1 makes no mention of negotiated contract rates between the medical provider in this dispute and other insurers as relevant to show that a Plaintiff’s charges are reasonable. Therefore, with respect to reimbursements from other PIP carriers, the Defendant’s motion is granted. With respect to reimbursements from all other third-party payors, the Defendant’s motion is denied and the Plaintiff’s objections are sustained.
III — RULES OF DISCOVERY
As to the rules of discovery, although discovery is broader than what evidence may be admissible at trial, matters may only be discoverable if they are relevant to the subject matter of the pending action. See, Rivero, supra. Plaintiff presents numerous orders from sister courts finding that negotiated rate contracts and reimbursements are not discoverable, including many from Duval County, See, Neurology Partner, P.A. d/b/a Emas Spine & Brain a/a/o Charlene Whitney v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 362a (Order of Duval County Court Judge Scott Mitchell dated September 16, 2014); McGowan Spinal Rehab Center a/a/o Jaynell Cameron v. State Farm Mut. Auto. Ins. Co., (Order of Duval County Court Judge Brent Shore dated October 15, 2014); Physicians Medical Center a/a/o Clayton Whitley, II v. State Farm Mut. Auto. Ins. Co., (Order of Duval County Court Judge John Moran dated December 9, 2014); and, Physicians Medical Center, Jax a/a/o Janice Primiano v. State Farm Mut Auto. Ins. Co., 22 Fla. L. Weekly Supp. 706a (Order of Duval County Court Judge Eleni Derke dated October 21, 2014). For the reasons stated previously, the Defendant’s Motion to Compel Better is denied as to production of negotiated rate contracts or reimbursement rates.
IV — MEDICARE PART BREIMBURSEMENT RATES/LEXCANO
Florida appellate courts have now clearly addressed relevancy and discoverability of Medicare reimbursements in a PIP context. In Hialeah Med. Assoc., Inc. (a/a/o Ana Lexcano) v. United Automobile Ins. Co., 21 Fla L. Weekly Supp. 487b (11th Cir. App. 2014), the Eleventh Circuit sitting in its appellate capacity ruled that Medicare reimbursements are not relevant in PIP cases where the reasonableness of a medical provider’s charges are at issue. Medicare is not health insurance, but a social welfare program to provide medical assistance to older citizens. The rates of reimbursement are governed by federal fee schedules and are not based, in any way, on reasonableness of charges submitted. Therefore, Medicare reimbursement rates are not relevant, cannot lead to relevant testimony, and can only confuse a jury as to the issue in this case, which is the reasonableness of the submitted charge. See, Rivero, at 804. Whether Plaintiff has collected co-payments or deductibles from other patients is similarly irrelevant as to the determination of whether the Plaintiff’s charges are reasonable.
V — TRADE SECRET, CONFIDENTIAL& PROPRIETARY INFORMATION
For the reasons listed above, the information sought by the Defendant is not relevant or discoverable. However, even assuming, arguendo, that the Court allowed such discovery, the Plaintiff alleges that the reimbursement amounts contained in negotiate rate contracts are confidential, trade secret, and proprietary information. As discussed in Rivero, the amounts of reimbursements negotiated in HMO/PPO contracts is confidential and proprietary. Judge Cohn remarked:
The Court takes judicial notice of the Motions for Protective Order filed by CIGNA and Blue Cross/Blue Shield in the case styled Pan Am Diag. Svcs., Inc. d/b/a Wide Open MRI (a/a/o Todd Martin) v. State Farm Mut. Auto. Ins. Co., Case No. 13-01283 CONO 73, which were granted on the basis that negotiated rate contracts between those insurers and their medical provider networks were protected by the trade secret privilege. To the extent that insurers in the marketplace are competitors or potential competitors, one insurer cannot be forced to disclose its negotiated contracts with medical providers to another insurer.
Rivero, cited, supra.
Based on the confidential and proprietary nature of the information sought, the Defendant’s motion to compel is denied as to these negotiated rate contracts.
Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion to Compel Better Responses to Request for Production is DENIED with respect to negotiated rate contract reimbursements, including HMO, PPO, and private health contracts, co-payments from patients and the production of same. The Defendant’s Motion to Compel Better Responses to Request for Production is DENIED also with respect to Medicare and Medicaid reimbursements. The Defendant’s Motion to Compel Better Responses to Request for Production is GRANTED with respect to reimbursements from PIP carriers. As to the other discovery sought in the Defendant’s motion, the Plaintiff agrees to provide better responses within thirty (30) days of the signing of this Order without opinion from this Court.
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1For example, HMO and PPO networks expose the medical provider to a much larger pool of potential patients by being in these medical “networks”; the payment for services rendered is virtually certain; the patients are often pre-approved for the services, which ensures payment for the services rendered; the patients are not subject to EUO’s (examinations under oath), “IME” examinations, or peer reviews; payment is not conditioned upon proper completion of a “disclosure and acknowledgment form”; the provider is not subject to a request for additional documentation similar to a F.S. 627.736(6)(b) request, and many other distinctions between HMO/PPO negotiated rate contracts and “no-fault” contracts, like the one with State Farm in this case.
2The Plaintiff also filed the affidavit of Donna Tressler, the person with the most knowledge as to billing. Ms Tressler attests that the amount of the Plaintiff’s charges was not a factor or played any part in the negotiation of the Plaintiff’s contracts with HMO/PPO providers. Likewise, she states that the amount of reimbursement in their negotiated rate contracts had nothing to do with the setting of the Plaintiff’s charges.
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