24 Fla. L. Weekly Supp. 439a
Online Reference: FLWSUPP 2406ESANInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Where medical provider had medical director at time services were rendered, it is outside purview of county court to determine whether director performed his duties so as to establish that services for which PIP benefits are claimed were lawfully rendered absent prior finding from Agency for Health Care Administration that provider had violated Health Care Clinic Act — If court has power to review compliance with Act, it determines that provider was substantially compliant
Y.H. IMAGING, INC., a/a/o (Sanchez, Eduardo), Plaintiff, vs. PROGRESSIVE SELECT INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-13902 SP 23. February 3, 2016. Myriam Lehr, Judge. Counsel: Kelly Arias & Brion Ross, The Arias Law Group, P.A., Hollywood, for Plaintiff. Lynne French Davis, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT(on the issue of Medical Director)
THIS CAUSE, having come before this Honorable Court and counsel of record, and the Court being otherwise fully advised in the premises, it is hereupon,
ORDERED AND ADJUDGED;
1. Defendant’s Motion for Summary Judgment is denied and Plaintiff’s Cross-Motion for Summary Judgment is hereby granted.PRELIMINARY STATEMENT
On or about October 29, 2009, Eduardo Sanchez was injured in an automobile accident. At the time of the accident, Eduardo Sanchez had PIP coverage under a policy of insurance issued by the Defendant, which inured to Eduardo Sanchez’s benefit. Eduardo Sanchez received medical treatment for his injuries at Y.H. Imaging, Inc.
Defendant thereafter remitted a Medicare Part B, Fee schedule payment to the Plaintiff in the amount of $243.83 on or about January 21, 2010 for the services provided. Subsequently, on July 18, 2012 the Plaintiff filed a lawsuit against Defendant for failure to pay PIP benefits due and owing for services rendered.
On March 26, 2014, the Defendant filed its initial Answer, Affirmative Defenses for Jury Trial alleging two affirmative defenses: 1.) Reasonable, Related and Necessity, 2) Unlawful use of mobile or portable x-ray 3) A failure to respond to a request for information pursuant to 627.736(6)(b) and 4) The use of improper CPT coding.
On February 24, 2015 the Defendant filed its Amended Answer adding a fifth affirmative defense of: 5) Plaintiff was operating in violation of the Medical Director statute [hereinafter Act].
On November 3, 2015, Defendant presented its Motion for Final Summary Judgment alleging that Plaintiff’s Medical Director, Dr. John Padron, M.D., allegedly failed to comply with Fla. Stat. §400.9935. Plaintiff’s argument in opposition to Defendant’s Motion for Summary Judgement was that Defendant ultimately may not prevail on a motion for summary judgment premised upon Fla. Stat. §400.9935 in this PIP breach of contract action for the following reasons: 1) Defendant has no private right of action or private right of enforcement in Chapter 400, The Health Care Clinic Act (“the Act”); 2) compliance with the Act is determined exclusively by the Florida Agency for Health Care Administration; 3) enforcement of the Act rests with the Florida Agency for Health Care Administration and enforcement/determination of a violation of same in a Florida County Court would result in a violation of due process; 4) Defendant is not a member of the class intended to be benefitted under the Act; 5) the Florida Agency for Health Care Administration has found Plaintiff in compliance with the Act; 6) neither Defendant nor this Court has the authority to challenge the Florida Agency for Health Care Administration’s regulatory authority under the Act; 7) the granting of Defendant’s motion for summary judgment would violate the separation of powers clause found in the Florida Constitution 8) and that the Plaintiff was in substantial compliance with Fla. Stat. §400.9935. The Court again heard oral argument on January 12, 2016 regarding the same matters as presented on November 3, 2015.
Defendant presented one deposition transcript of the Medical Director for Y.H. Imaging, Inc. that was taken in three separate, unrelated cases. The deposition occurred on August 1, 2013 in the Broward County, Florida cases of 11-005953 COSO 60; 11-8935 SP 21 and 11-005953 COSO 60.
During the hearing on November 3, 2015 the Defendant relied upon two primary cases in the presentation of its argument. The first case is State Farm Fire & Casualty Company v. Silver Star Health and Rehab, 739 F.3d 579 (M.D. Fla. 2013) [24 Fla. L. Weekly Fed. C834a]. The second case is Active Spine Centers, LLC v. State Farm Fire & Casualty Co., 911 So. 2d 241 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2286a].
The Defendant’s legal argument does not prevail as, unlike the case law upon which Defendant relies, the Plaintiff had a medical director at the time the services were rendered and statutory compliance is contested by the subject parties. As a result, this court would be forced to make the determination as to whether Dr. John Padron, M.D. strictly complied with Fla. Stat. 400.9935 without jurisdiction to do so. It is not within the purview of this court to make this decision absent a prior official finding from AHCA that Y.H. Imaging, Inc. had violated Fla. Stat. §400.9935. Assuming arguendo, that this Court was even vested with this power, the Court has reviewed the statutory requirements pursuant to the Defendant’s position under the definition of lawfulness pursuant to Fla. Stat. §627.732(11) and has determined that the Plaintiff was substantially compliant as defined by “all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment”.1
LEGAL STANDARD
A party is entitled to summary judgment in their favor if the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The moving party bears the burden of demonstrating the non-existence of any genuine issue of material fact. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Calarese v. Weissfisch, 87 So. 3d 1225, 1227 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1238c]. However, once the moving party has met its burden, the burden then shifts to the party opposing the motion to come forward with counter-evidence sufficient to reveal a genuine and material disputed issue of fact. Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a].FINDINGS OF LAW AND RULING
The Defendant asked this Court to make a determination as to whether the Plaintiff strictly complied with the Health Care Clinic Act; specifically Chapter 400. Read plainly, Chapter 400, specifically Fla. Stat. §400.9935, fails to express any private right of action or private right of enforcement. This is because the Health Care Clinic Act is clear in its objective of consumer protection and in the vesting of enforcement powers in the Agency for Health Care Administration (AHCA) for compliance, specifically medical or clinical director compliance under Fla. Stat. §400.9935. Fla. Stat. §400.990, verbalizes the legislative intent to regulate health care clinics for the purpose of strengthening rules to prevent significant cost and harm to consumers.
The Defendant relies upon the following: 1.) State Farm Fire & Casualty Company v. Silver Star Health and Rehab, 739 F.3d 579 (M.D. Fla. 2013) [24 Fla. L. Weekly Fed. C834a]; 2.) Active Spine Centers, LC v. State Farm Fire & Casualty Co., 911 So. 2d 241 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2286a]; and 3.) State Farm Mutual Automobile Insurance Company, et al. v. Advantage Medical Diagnostic, Inc., et al., 15 Fla. L. Weekly Supp. 1094a (Fla. 13th Cir. Ct. April 17, 2007). However, each of these cases is distinguishable from the instant case. In Silver Star, there was no medical director at all. In Active Spine, the chiropractic clinic lost its exemption when its owner died and the clinic was not entitled to payment of PIP benefits from the automobile insurer for unlawful treatment of accident victims between owner’s death and registration. In Advantage Medical it was uncontested that the medical director failed to perform his duties. In the instant case, the Plaintiff had a medical director, Dr. John Padron, M.D. and the parties contest whether he performed his duties. Additionally, Defendant has provided no factual evidence that AHCA had made a determination that Y.H. Imaging, Inc. had any administrative violations pursuant to Fla. Stat. 400 Part X.
Given the foregoing, this Court holds that it is outside the purview of the court to make the determination that there was no compliance with Fla. Stat. 400.9935 (2011) absent a finding from AHCA that Y.H. Imaging, Inc. had been in violation of said statute at the time the services were rendered to the patient, Eduardo Sanchez.THE ISSUE OF SUBSTANTIAL COMPLIANCEUNDER 627.732(11) and CHAPTER400 X (FLA. STAT. 400.9935(1)(A-G)
This Court has also gone a step further than prior opinions and completed an exhaustive review of Chapter 400, specifically Fla. Stat. §400.9935; the AHCA survey and inspection requirements pursuant to Part II, F.S., Chapters 59A-35 and 59A-33, Florida Administrative Code (F.A.C.) during an inspection as required in Sections 408.806 and 408.811, F.S.
Going forward it is imperative that all parties recognize that this Court cannot carve out exceptions to the Act, where the language is clear and unambigous. See, e.g., Klonis v. State, Dept. of Revenue, 766 So.2d 1186 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D2230a] (“If the statutory wording is unambigious, then judicial inquiry is complete.”; DTRS Intercontinental Miami, LLC v. A.K. Gift Shop Inc., 77 So.3d 785 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2773b] (“The law is the law. It is not our job to carve exceptions in to an otherwise clear and imperative statute.”)
Given the foregoing, in reviewing the requirements, the Defendant sought to determine whether Y.H. Imaging, Inc. was in fact substantially compliant with the Medical Director’s duties pursuant to the following areas under Fla. Stat. §400.9935(1)(a-g):
(1) Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful.
(2) Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful as it relates to the Plaintiff’s use of portable and/or mobile x-ray machines.
(3) Ensure compliance with Fla. Stat. 404.22 and 64E-5, F.A.C. by confirming that the X-ray equipment was registered with the Department of Health.
(4) Ensure that all health care practitioners at Y.H. Imaging, Inc. have active appropriate certification of licensure for the level of care being provided.
Fla. Stat. §400.9935(1)(a-g) lists a part of the areas that encompass a portion of the Medical Director duties, which are fully enumerated in Chapter 400. As such, this Court’s analysis under the language of substantial compliance with F.S. 627.732(11) must include all of the requirements under the [Act] as well as “all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment”. Emphasis added.
Given this requirement, the Defendant’s motion does not present enough factual evidence to support a result of lack of substantial compliance with the [Act] and “all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment”. F.S. 627.732(11).
Consistent with section 400.9935(1)(a), Dr. Padron’s August 1, 2013 transcript filed in support of the Defendant’s and Plaintiff’s Motion(s) for Summary Judgment and Plaintiff’s affidavit filed in support of Plaintiff’s Motion reveals that Dr. Padron complied with the subsection of the 400.9935(1)(a) by having signs identifying the medical director or clinic director posted in a conspicuous location within the clinic readily visible to all patients.
Consistent with section(s) Fla. Stat. 400.9935(1)(b) Dr. Padron knew that the techinicians working at the clinic were licensed as he had a personal relationship with the clinic and the techinicians. The Defendant presented argument suggesting that Medical Director’s have an obligation to make a more diligent effort than Dr. Padron performed as the Plaintiff’s Medical Director. However, the Act mentions no specific procedure that the Court can follow to determine that Dr. Padron’s actions were not in compliance with the Act’s rquirement(s). Moreover, this “requirement”, added by the Defendant, is not delineated in the statute and is simply the Defendant’s personal preference as to how duties should be fulfilled, in an attempt to create an additional duty for the Medical Director.
Fla. Stat. 400.9935(1)(g) requires that Medical Director’s “conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful. . .” Dr. Padron’s transcript clearly states that he would visit the clinic three to four times per month to choose random charts for inspection. The inspection included a review of the prescription, medical file and x-ray reports. The Act simply does not specify that the Medical Director of an x-ray facility has a duty to peform a more exhaustive review than the evidence presented before the Court in the case at bar. Moreover, the affidavit filed by the Plaintiff states that Dr. Padron conducted reviews of the billings. The Defendant raises the argument that Dr. Padron did not systematically review medical records consistent with section 400.9935(1)(g). The deposition transcript filed by the Defendant does not reflect that the Defendant ever asked Dr. Padron this specific question as to whether he specifically systematically reviewed the medical records. Therefore the Court must rely on the affidavit filed by the Plaintiff that does reflect that Dr. Padron reviewed the bills. The only evidence directly on point with this issue is the Plaintiff’s affidavit of Dr. Padron.
Consistent with section Fla. Stat. 400.9335(1)(e) Dr. Padron served as the clinic records owner and ensured compliance with recordkeeping. The Defendant also raises the issue that Dr. Padron did not specifically determine whether mobile or portable x-rays were necessary in his review of the x-ray films. The Court finds that this duty is not listed in any of the plain language of Fla. Stat. 400.9935. Without a specific procedure deliniating this requirement, the Court cannot determine that the Clinic was not in substantial compliance with the Act.2
The Defendant also argues that Plaintiff was not substantially compliant with the Act because Dr. Padron failed to ensure compliance with Fla. Stat. 404.22 and 64E-5, F.A.C. by confirming that the X-ray equipment was registered with the Department of Health. However, there is no specific provision anywhere in the 400.9335(1a-g) that requires the Medical Director of a Clinic to perform this function. Moreover, the x-ray equipment was always registered with the Department of Health, the licenses of said equipment were placed in public view and AHCA conducted inspections on these machines and found no deficiencies.
Beyond these initial requirements, there simply is no evidence in the record to reflect that Y.H. Imaging, Inc. or Dr. Padron did not substantially comply with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment as required under the Defendant’s position under lawfulness pursuant to Fla. Stat. §627.732(11).
Therefore, Defendant’s motion for summary judgment is DENIED and Plaintiff’s motion for summary judgment is GRANTED.
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1Both Plaintiff and Defendant’s Motion(s) for Summary Judgment relies on the statutory language of Fla. Stat. §627.732(11) to apply section(s) Fla. Stat. 400 Part X and Fla. Stat. 400.9935(1-9) to the case at bar.
2Oral argument presented reflects that x-ray prescriptions are ordered by the treating or referring physician.
