22 Fla. L. Weekly Supp. 456a
Online Reference: FLWSUPP 2204ROYAInsurance — Personal injury protection — Discovery — Insurer is not entitled to discover documents reflecting amounts accepted by medical provider as reimbursement for Medicare and Medicaid from third-party payers with which provider has negotiated rate contracts — Insurer is entitled to discover reimbursement amounts accepted by provider from other PIP carriers and third-party payers with which provider does not have contracts
PHYSICIAN’S MEDICAL CENTER JAX, INC. A/A/O DEBRA ROYAL, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-1988. October 9, 2014. Scott Mitchell, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Jacksonville, for Plaintiff. Shalisa Francis, Taylor, Day, Grimm & Boyd, 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 September 23, 2014 on Defendant’s Motion to Compel Better Responses to Request to Production. The Court, having reviewed the motions and entire Court file, read relevant legal authority; heard argument, and been sufficiently advised in the premises, finds as follows:
The main issue, as framed by the parties, goes to the discoverability of amounts accepted as reimbursements from third-party payors. The Defendant advances three basic arguments: 1) evidence of the amounts accepted by third-party payors is relevant to “the analysis” of whether the charges submitted by the Plaintiff for medical services rendered are reasonable;1 2) the statute specifically enumerates that documents “regarding what payment amount plaintiff has accepted from other sources are (sic) relevant” as to the reasonableness of the charge;2 and 3) 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 Court will briefly address each position above.
I — RELEVANCY
The first request seeks:
“Any and all information or documentation evidencing what Plaintiff accepted as payment from Medicare, Medicaid, Worker’s Compensation, PPO, HMO, private insurance carriers (such as Blue Cross/Blue Shield, Aetna, Cigna, United Healthcare, Humana, etc.) private pay, or any other payor including automobile insurance carriers, for the CPT codes at issue in the instant lawsuit for the year in which said services were rendered.”
The eleventh request seeks:
“Any and all contracts or agreements between the Plaintiff and Medicare, Medicaid, Workers Compensation, PPO, HMO, private insurance carriers (such as Blue Cross/Blue Shield, Aetna, Cigna, United Healthcare, Humana, etc.) private pay, or any other payor including automobile insurance carriers that establishes or outlines charges or payments for the CPT codes billed by the Plaintiff in the instant lawsuit.”
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 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.3 See, Palms MRI Diagnostics Imaging Centers, Inc. a/a/o Diana Martin v. State Farm Mut. Ins. Co., 21 Fla. L. Weekly Supp. 1079a (Order of Broward County Court Judge Steven DeLuca dated May 21, 2014). Based on the nature of the statutory PIP payment paradigm, such incentives are foreign in a PIP context. Therefore, to delve into the reimbursement amounts for each CPT code in these negotiated rate contracts is to seek information that is not relevant to the subject matter of the pending action. As to those items, the Motion to Compel is denied.
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 Diagnostic Center, Inc. a/a/o Marisely Trujillo v. State Farm Mutual Automobile Ins. Co., 21 Fla. L. Weekly Supp. 804a (Order of Miami-Dade County Court Judge Don Cohn dated April 23, 2014), 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. Further, because of the inherent differences with a PIP contract that mandates payment based on reasonable charges, 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”. As stated in Palms MRI Diagnostics Imaging Centers, Inc. a/a/o Diana Martin v. State Farm Mut. Ins, See, 21 Fla. L. Weekly Supp. 1079a, supra, the mere fact “that an HMO or PPO pays less, without more, does not mean that the Plaintiff’s charge is unreasonable. See, Hillsborough County Hospital v. Fernandez, 664 So.2d 1071 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D2650b]. Therefore, with respect to negotiated rate contracts with HMO/PPO providers, the Defendant’s motion is denied. With respect to reimbursements from other PIP carriers, the Defendant’s motion is granted. With respect to reimbursements from third-party payors to which the Plaintiff is not contracted, the Defendant’s motion is granted.
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 Diagnostic Center, Inc. a/a/o Marisely Trujillo v. Slate Farm Mutual Automobile Ins. Co., 21 Fla. L. Weekly Supp. 804a, supra. Plaintiff presents numerous orders from sister courts finding that negotiated rate contracts and reimbursements are not discoverable, including a prior order from this Court, See, Neurology Partner, P.A. d/b/a Emas Spine & Brain a/a/o Charlene Whitney v. STate Farm Mutual Automobile Ins. Co., (Duval County case number 16- 2013-SC-135, order of Duval County Court Judge Scott Mitchell dated September 16, 2014) [22 Fla. L. Weekly Supp. 362a]; see also, Palms MRI Diagnostic Imaging Center, Inc. a/a/o Frank Sirker v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 1069a (Order of Broward County Court Judge Louis Schiff dated May 19, 2014); Craig A. Newman, D.C., P.A. a/a/o Tera Mangan v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1091a (Order of Hillsborough County Court Judge Gaston Fernandez dated August 13, 2013); and, Manuel V. Feijoo M.D. & Manuel V. Feijoo, M.D. P.A. a/a/o Elias Leoni v. United Automobile Ins. Co., (Order of Miami-Dade County Court Judge Patricia Marino Pedraza, Miami-Dade County court case number 13-12281 SP 25 (3) dated April 8, 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.
Similarly, the Court denies the Defendant’s Motion to Compel Better as it relates to reimbursements for Medicare & Medicaid. These programs are not insurance as its premiums are not based on risk. The reimbursements are based on computations set by fee schedules.
Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion to Compel Better Response to Request to Produce is DENIED with respect to negotiated rate contract reimbursements, including HMO, PPO, and private health contracts and the production of same. The Motion to Compel Better Response to Request to Produce is DENIED also with respect to Medicare and Medicaid reimbursements. The Defendant’s Motion is GRANTED with respect to reimbursements from PIP carriers and reimbursements from third-party payors that do not have negotiated rate contracts. 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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1See paragraph 9 of the Defendant’s motion, which states, “[T]o determine whether Plaintiff’s medical charges were reasonable, under Florida law, State Farm is entitled to know what payments Plaintiff has accepted in the past for the same medical services, including payments Plaintiff accepted from other sources. The amount another insurer or third-party pays Plaintiff for its services goes directly to the analysis of whether Plaintiff medical charges were reasonable.”
2See paragraph 10 of the Defendant’s motion, which states, in part, The Florida PIP Statute shows documents regarding what payment amount Plaintiff has accepted from other sources are (sic) relevant.
3For 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.
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