23 Fla. L. Weekly Supp. 250a
Online Reference: FLWSUPP 2303FJACInsurance — Personal injury protection — Discovery — Where medical provider is not seeking payment in excess of 80% of 200% of Medicare Part B fee schedule that is statutory minimum allowed to be reimbursed by PIP insurer, evidence of lower reimbursement rates accepted by provider from other insurance carriers is not relevant — Motion to compel production of contract between provider and other carrier is denied
FIRST COAST MEDICAL CENTER, INC., a/a/o Freddie Jacobs, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2011-SC-3193, Division C. April 21, 2015. Brent D. Shore, Judge. Counsel: Katie DeSantis McCranie, Beach Life Law, Neptune Beach, for Plaintiff. John E. Eckard, II, Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTION TOOVERRULE PLAINTIFF’S OBJECTIONSAND COMPEL BETTER RESPONSESTO REQUEST TO PRODUCE
This cause came before the Court on Defendant’s Motion to Overrule Plaintiff’s Objections and Compel Better Responses to Request to Produce. The Court having reviewed said motion and the Court file, having heard the the arguments of counsel, and otherwise being fully advised in the premises, the Court finds as follows:
1. Plaintiff filed the instant breach of contract action for personal injury protection benefits alleging Defendant breached the policy of insurance issued to Defendant’s insured / Plaintiff’s assignor by failing to pay the full amount due to Plaintiff for treatment rendered to Defendant’s insured for injuries sustained in a motor vehicle crash.
2. Defendant alleged as its affirmative defense that “. . . .pursuant to Florida Statute 627.736 and the subject policy of No Fault Insurance, it paid the appropriate and allowable amount of Plaintiff’s claims and that no further payment remains due and owing.”
3. On or about February 27, 2012, Defendant propounded a Request to Produce, requesting in number thirteen, “Any and all contracts or agreements between the Plaintiff and 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 that establishes or outlines charges, or payments for the CPT codes billed by the Plaintiff in the instant lawsuit.”
4. Plaintiff objected to production and responded that “There exists a ‘Chiropractic Physician Medical Services Agreement’ between Plaintiff and Blue Cross and Blue Shield which relates only to chiropractic services. This agreement is the subject of a provision relating to ‘Confidentiality of Contract Terms and Insured Listings’ which precludes disclosure of the Agreement to third parties except upon written authorization by BCBSF.”
5. Defendant filed the Motion that is the subject of this Order requesting that “this Court Overrule Plaintiff’s objections and order the Plaintiff to provide better responses to the Defendant’s Request to Produce, including alleviating it from any confidentiality with regard to the agreement between the Plaintiff and Blue Cross and Blue Shield, and providing for all other relief it deems just and proper.”
6. In the instant case, Plaintiff submitted a pre-suit demand letter to Defendant seeking payment on a number of claims. The subject policy provided PIP and MedPay coverage. In calculating the total amount due, Plaintiff’s pre-suit demand letter demanded payment equal to the amount of allowable charges pursuant to the Medicare Part B Participating Physicians Fee Schedule as provided in Florida Statute § 627.736 (5)(a)(2).
7. Defendant continued to deny payment and throughout this litigation has sought discovery regarding the reasonableness of Plaintiff’s charges as provided in Florida Statute § 627.736 (5)(a)(1).
8. Defendant’s policy of insurance contained Amendatory Endorsement 6910.3(5)(b) which provides that Defendant will pay 80% of all reasonable medical expenses. It states that “to determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, 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.”
9. Defendant relied on this provision, the Florida No Fault Statute, and other sources mentioned in its Motion to argue its entitlement to discover payments to Plaintiff from sources such as HMOs, PPOs, Medicare, and Self-Pay patients.
10. The Court would agree with the Defendant on this point if the Plaintiff was demanding payments in excess of the Medicare Part B Participating Physicians Fee Schedule as provided in Florida Statute § 627.736 (5)(a)(2).
11. In the instant case, the Plaintiff has demanded payment equal to the amount of allowable charges pursuant to the Medicare Part B Participating Physicians Fee Schedule as provided in Florida Statute § 627.736 (5)(a)(2).
12. Preceding Court cases concerning the dynamic between Florida Statute § 627.736 (5)(a)(1) and Florida Statute § 627.736 (5)(a)(2) largely involve the issue of whether an insurer could limit reimbursements based on the Medicare fee schedules identified in Florida Statute § 627.736 (5)(a)(2) without providing notice in its policy of an election to use the Medicare fee schedules as the basis for calculating reimbursements. (See Kingsway Amigo Insurance Company v. Ocean Health, Inc. a/a/o Belizaire Gomez, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]; Geico General Insurance Company v. Virtual Imaging Services, Inc., etc., No. SC12-905 (Fla. 2013) [38 Fla. L. Weekly S517a]; St Johns Medical Center a/a/o Christina Brown v. Direct General Insurance Co., 21 Fla. L. Weekley Supp. 925a (4th Judicial Circuit, Duval County, Florida County Court 2013); and Pan Am Diagnostic Services Inc., a/a/o Joel Pasterin v. Metropolitan Cas. Ins. Co., 19 Fla. L. Weekly Supp. 874a (17th Judicial Circuit, Broward County, Florida County Court 2012)).
13. While the case law is clear regarding the need for proper endorsements and elections within policies of insurance so that insurers can avail themselves of the limitations provided for in the Medicare Part B Participating Physicians Fee Schedule, the preceding cases, and others similar to those, went on to say something else as well.
14. The cases are relevant in the instant action because they showcase the legislative intent with regard to the 2008 amendments to the Florida No-Fault Act and how different courts across the State of Florida have come to the same conclusions that 80% of 200% of the Medicare Part B participating physicians fee schedule is the floor or the minimum that a PIP insurer can reimburse a provider for PIP claims in the State of Florida and in accordance with the No-Fault Statute.
15. Legal opinions following the Florida No-Fault Act 2008 amendments categorize the Medicare fee schedule in terms of its application under the PIP statute as a limitation or a minimum safe harbor. (See Kingsway, Id. at 66. “. . . .has the safe-harbor option to limit its reimbursement obligation. . . “; Pan Am Diagnostic Services. Id. citing to Windsor Imaging a/a/o Roneil Morris vs. State Farm Insurance, 19 Fla. L. Weekly Supp. 215b (Broward County Court, December 12, 2011) “The No-Fault Act sets the floor with respect to the minimum reimbursement under Florida Statute § 627.736 (5)(a)(2); Virtual Imaging, Id. at 4 . . . “the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.”; and St Johns Medical Center, Id. at 5 “. . . . the Defendant cannot avail itself of payments limited by the Medicare fee schedule.”)
16. The law in the State of Florida is clear that the method of calculating reimbursement under Florida Statute § 627.736 (5)(a)(2) is the minimumamount that a PIP insurer can reimburse a provider.
17. Applying these holdings to the instant case, where a provider is seeking the statutory minimum allowed to be reimbursed pursuant to Florida Statute § 627.736 (5)(a)(2), evidence of lower reimbursements and payments less than 80% of 200% of the Medicare Part B Participating Physicians Fee Schedule is immaterial and not relevant in Florida PIP cases.
THEREFORE, it is hereby ORDERED and ADJUDGED that Defendant’s Motion to Overrule Plaintiff’s Objections and Compel Better Responses to Request to Produce is hereby DENIED.
