23 Fla. L. Weekly Supp. 54a
Online Reference: FLWSUPP 2301JBOWInsurance — Personal injury protection — Discovery — Negotiated contract rates, Medicare reimbursements and patient co-payments accepted by medical provider are not discoverable where these are not enumerated in PIP statute as factors to be considered in determining reasonableness of charges, and information sought is not reasonably calculated to lead to relevant evidence — Reimbursements accepted by provider from other PIP carriers are relevant and discoverable
PHYSICIANS MEDICAL CENTERS, JAX., INC. A/A/O JANICE BOWMAN, Plaintiff, v. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-1660. January 27, 2015. Mose L. Floyd, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. John Eckard, II, Roig Lawyers, Orlando, for Defendant.
ORDER DENYING IN PART AND GRANTINGIN PART DEFENDANT’S MOTION TOOVERRULE PLAINTIFF’S OBJECTIONSTO DEFENDANT’S REQUEST TO PRODUCE
THIS CAUSE came before the Court for hearing on October 7, 2014 on Defendant’s Motion to Overrule Plaintiff’s Objections to Defendant’s Request to Produce. The Court, having reviewed the motion and entire Court file, read relevant legal authority, heard argument, and been sufficiently advised in the premises, finds as follows:
The basis for the Plaintiff’s objections is that reimbursement rates to the Plaintiff from third-party payors other than PIP carriers are not relevant to the reasonableness of the Plaintiff’s charges. The Defendant states that evidence of the amounts paid by third-party payors are relevant to the reasonableness of the Plaintiff’s charges; the statutory language specifically enumerates “reimbursements” as a relevant factor as to the reasonableness of the charge; and, 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).
ANALYSISI — STATUTORY CONSTRUCTION &UNIUS EST EXCLUSION ALTERIUS
The Court first reviews the language of Florida Statutes §627.736(5)(a), 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.
Florida Statute §627.736(5)(a)1 does not list “negotiated rate contracts, Medicare reimbursements or patient co-payments” between the medical provider and other insurers as an enumerated factor to show that a Plaintiff’s charge is reasonable. As the Florida Supreme Court said in Young v. Progressive Se. Ins. Co., 753 So.2d 80, 85 (Fla. 2000) [25 Fla. L. Weekly S120a], “[U]nder the principle of statutory construction, unius est exclusion alterius, the mention of one thing implies the exclusion of another.” Applying the principle of unius est exclusion alterius to this case, there is no mention of negotiated rate contracts, Medicare reimbursements, or co-pay reimbursements as factors when determining the reasonableness of a submitted charge in a PIP case. It is another well-established tenet of statutory construction that courts are not at liberty to add words to the statute that were not placed there by the legislature. Agee v. Brown, 73 So.3d 882 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2492b]. The legislature could have easily included these reimbursements amounts as factors to consider in determining the reasonableness of a submitted charge. It did not.
Therefore, since the items objected to by the Plaintiff are not enumerated factors in Florida Statute §627.736(5)(a) for a trier of fact to consider, this Court rules that same are irrelevant, unable to assist a trier of fact, and not discoverable
.II — RELEVANCY
In addition to the fact that the information sought is not enumerated Florida Statute §627.736(5)(a), the Court finds that, 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”. 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 (Order of Broward County Court Judge Steven DeLuca dated May 21, 2014), 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]. The issue in this case is the reasonableness of the submitted charge, not the reimbursement. Reimbursement rates from HMO/PPO contracts and co-pays from patients have nothing to do with the reasonableness of the charge. To the contrary, the reimbursement is agreed to between the parties irrespective of the charge. Therefore, seeking this information is not reasonably calculated to lead to relevant evidence that would assist a trier of fact and is not discoverable.
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, Ack-Ten Group, LLC d/b/a Seacrest Open MRI of Wellington a/a/o Adrian Marrero v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 583b (Order of Palm Beach County Court Judge Nancy Perez dated August 27, 2013)(requiring the Plaintiff to provide the average reimbursement amount Plaintiff received for the CPT codes at issue from PIP insurers); also see, Physician’s Medical Center, Jax, Inc. a/a/o Janice Primiano v. State Farm Mut. Auto. Ins. Co., (Order of Duval County Court Judge Eleni Derke dated October 21, 2014, case number 16-20130-SC2416) [22 Fla. L. Weekly Supp. 706a] (reimbursement rates from PIP carriers compares “apples to apples”).
III — ALLSTATE INS. CO. v. HOLY CROSS
Defendant also relies on Allstate Ins. Co. v. Holy Cross, Inc., 961 So.2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a] to determine “what a provider customarily charges or has previously accepted” in determining a reasonable fee. While the Supreme Court in Holy Cross allowed such reimbursements, the carrier, Allstate, was only allowed such evidence because it entered into a PPO arrangement with Beech Street, a provider network. In our case, Star Casualty has not entered into a PPO or HMO contract with the Plaintiff, Therefore, the analysis here is exactly the same as that in Rivero:
The issue before the Court in Holy Cross was whether Allstate could pay the reduced rate based upon the PPO contracts notwithstanding that it had not complied the PIP Statute’s PPO provision (the statute requires a PIP insurer to offer a nonpreferred provider policy if it offers a preferred provider policy to an insured). Because Allstate had contracted with Beech Street, a provider network, with which Holy Cross had also contracted, the Court determined that Allstate could pay the reduced PPO rate even though it had not issued PPO policies to its insureds. The contractual relationship amongst the parties in Holy Cross is key to the Supreme Court’s decision to allow Allstate to pay the reduced PPO rate.
Rivero, at 804. (emphasis added).
Just like in Rivero, this is simply a case in which Star Casualty seeks to avail itself of the reduced negotiated rates under contracts between Plaintiff and other insurers to which Star Casualty is not a party. Nothing prevented Star Casualty from directly entering into a PPO or HMO contract with Plaintiff if it desired to avail itself of reduced negotiated rates.
Because negotiated rates in an HMO/PPO agreement and the “reasonable” amount that Defendant’s policy obligates it to pay pursuant to Florida Statute §627.736(5)(a)1 are “apples and oranges”, this Court determines that any such negotiated rate contracts that Plaintiff may have with other insurers are not relevant to a determination of what price Star Casualty must pay for Plaintiff’s services in this case.
IV — MEDICARE PART BREIMBURSEMENT RATES/LEXCANO
Florida appellate courts have now clearly addressed relevancy and discoverability of Medicare reimbursements ina 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. 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. See, Pompano Beach Pain & Rehabilitation a/a/o Felix Guzman v. State Farm Mut. Auto. Ins. Co., (Order of Miami-Dade County Court Judge Lawrence King dated September 3, 2014, case number 13-6219 SP 26 (04) [22 Fla. L. Weekly Supp. 375a]).V — RULE 1.280(b)(1)
While Florida Statute §627.736(5)(a)1 does include factors such as “payments accepted”, “reimbursement levels in the community and various federal and state fee schedules”, this Court concludes that the items at issue in this Order cannot be discoverable under the Florida Rules of Civil Procedure 1.280(b)(1). Although discovery is generally 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. State Farm Mutual Automobile Ins. Co., 21 Fla. L. Weekly Supp. 804a, supra. Plaintiff presents numerous orders from sister courts finding that negotiated rate contracts are not discoverable, See, 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); 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); and, Pompano Beach Pain & Rehabilitation, Inc. a/a/o Felix Guzman, v State Farm Mut. Auto. Ins. Co., (Order of Miami-Dade County Court Judge Lawrence King dates September 3, 2014, case number 13-6219 SP 26 (04) [22 Fla. L. Weekly Supp. 375a]). Defendant also argues that collection of co-payments from all other patients is relevant to the reasonableness of the charge. Defendants argues that if the Plaintiff waives the 20% co-payment that the patient is responsible for, then the Plaintiff is only entitled to “80% of 80%” of the billed amount since it (the provider) routinely accepts only 80% of the amount billed. This court will not stack inferences upon inferences to allow this discovery as there are many reasonable reasons as to why a provider may waive or reduce a patient co-payment that have nothing to do with the charge being reasonable or unreasonable. Further, the collection of the patient co-payment is not relevant to the reasonableness of the charge submitted.1
This Court is persuaded by the above authority and finds, reimbursement rates from HMO/PPO carriers, Medicare fee schedules, and co-payments from patients 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.
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 submitted charge; the exact issue in this case.
Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion to Overrule Plaintiff’s Objections to Request to Produce is DENIED with respect to negotiated rate contract reimbursements, including HMO, PPO, and private health contracts, and co-payments from patients. The Defendant’s Motion to Overrule Plaintiff’s Objections to Defendant’s Request to Produce is DENIED also with respect to Medicare and Medicaid reimbursements. The Defendant’s Motion to Overrule Plaintiff’s Objections to Request to Produce 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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1The Court also notes that the production of patient treatment and billing records are protected by the patient privacy statutes set forth in Florida Statute. § 456.057 Fla. Stat., which contain specific confidentiality protections against the disclosure of same. Under the statute, a patient’s medical and billing records may not be disclosed to a third party without the patient’s written authorization. See, Crandell v. Michaud, 603 So.2d 637 (Fla. 2d DCA 1992); Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2015a].
