25 Fla. L. Weekly Supp. 109a
Online Reference: FLWSUPP 2501WELCInsurance — Personal injury protection — Coverage — Medical expenses — In provision of PIP statute allowing for use of alternate method of calculating reimbursement in event provider submits charge for an amount that is “less than the amount allowed under subparagraph 1.” and similar provision of PIP policy, “amount allowed under subparagraph 1.” is 80% of 200% of allowable amount under Medicare fee schedule, not 80% of fee schedule amount — Where billed amount exceeds 80% of 200% of allowed amount under Medicare fee schedule, insurer was required to pay 80% of 200% of fee schedule amount, not 80% of billed amount
PHYSICIANS GROUP, LLC, as assignee of Emily Welch, Plaintiff, vs. GEICO INDEMNITY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-018855, Division L. February 21, 2017. Michael S. Williams, Judge. Counsel: Anthony T. Prieto, Prieto, Prieto & Goan, P.A. Tampa; and David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiff. David Dougherty, Law Office of Ellen H. Ehrenpreis, Tampa, for Defendant.
ORDER ON COMPETING MOTIONSFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on January 25, 2017 concerning: (1) the “Motion for Partial Summary Judgment” filed on November 1, 2016 by the Plaintiff, Physicians Group, LLC, as assignee of Emily Welch; and (2) the “Motion for Summary Judgment” filed on December 8, 2016 by the Defendant, Geico Indemnity Company. The Court, having considered the motions, the arguments of counsel, the record, the admissible evidence, and the parties’ proposed orders, and being otherwise advised in the premises,
ORDERED AND ADJUDGED, as follows:
1. This case involves a dispute concerning the personal injury protection (“PIP”) portion of an insurance policy issued by the Defendant to Emily Welch (the “Insured”).
2. The parties have filed competing motions for summary judgment, and the material facts are undisputed with respect to the issues raised by those motions.
3. The Insured was injured in an automobile accident and subsequently sought medical treatment from the Plaintiff on March 3, 2014 for CPT Code 97110 (therapeutics exercise) and other services. The Plaintiff charged $60.00 for that service and properly invoiced the Defendant for PIP benefits under the insurance policy.
4. The services rendered by the Plaintiff are the type of non-hospital non-emergency services that are covered by Section 627.736(5)(a)1.f(I), Florida Statutes (2013) and the schedule of maximum charges1 described therein. In that situation, the PIP statute generally requires the insurance company to pay 80% of 200% of the Medicare Part B participating physician fee schedule amount. The Medicare Part B participating physician fee schedule amount for CPT Code 97110 is $31.83; 200% of that amount is $63.66; and 80% of that amount is $50.93.
5. After receiving the Plaintiff’s bill, Geico’s Explanation of Review form identified the $60.00 charge with a “BA” notation, which stands for “Billed Amount.” Instead of paying 80% of 200% of the fee schedule amount (i.e., $50.93), Geico merely paid 80% of the $60.00 billed amount, which was $48.00.
6. In pertinent part, the permissive methodology described in Section 627.736(5)(a)1 and 5 states:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
. . . . .
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges . . . .
. . . . .
5. . . . If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.
7. In addition to the provisions of Section 627.736(5)(a)1 and 5, the relevant portions of the Defendant’s insurance policy state:
PAYMENTS WE WILL MAKE
The Company will pay . . .:
(A) Eighty percent (80%) of medical benefits which are medically necessary, pursuant to the following schedule of maximum charges contained in the Florida Statutes § 627.736(5)(a)l., (a)2. and (a)3.:
. . . . .
A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.
8. Notably, Section 627.736(5)(a)5 states the insurer “may” pay the amount of the charge submitted, but the insurance policy states that the charged submitted “shall” be paid. The Defendant’s use of the word “shall” in the insurance policy is mandatory in nature, while the statute’s use of the word “may” is permissive in nature. See, e.g., Leghorn v. Wieland, 289 So. 2d 745, 747 (Fla. 2d DCA 1974) (contract’s use of “the word ‘may’ denotes a permissive term rather than the mandatory connotation of the word ‘shall’ ”).
9. For purposes of the competing motions for summary judgment in this case, the Plaintiff assumes arguendo that the Defendant’s insurance policy has properly elected the fee schedule payment methodology set forth in Section 627.736(5)(a)1-5, Florida Statutes (2013).
10. In their respective motions for summary judgment, the parties disagree about the meaning and effect of the foregoing statutory and contractual provisions. The Plaintiff’s motion advanced two alternative arguments. At the summary judgment hearing, the Plaintiff advised the Court that it was only relying on the alternative argument.
11. In its alternative argument, the Plaintiff contends that the “amount allowed under subparagraph 1” referenced in Section 627.736(5)(a)5 is “80 percent of the following schedule of maximum charges.” The Plaintiff also contends that the “amount allowed above” described in the insurance policy is “Eighty percent (80%) of medical benefits which are medically necessary, pursuant to the following schedule of maximum charges.” So, according to the Plaintiff, if a health care provider’s billed amount is less than 80% of the schedule of maximum charges, then the Defendant must pay the amount of the charge submitted. Because the Plaintiff rendered non-hospital non-emergency services in this case, the Plaintiff contends that the Defendant was required to pay 80% of 200% of the allowable amount under the participating physicians fee schedule. See, §627.736(5)(a)2.f(I), Fla. Stat.
12. In contrast, the Defendant contends that if the health care provider’s billed amount is less than 80% of the schedule of maximum charges, the Defendant may pay 80% of that billed amount.
13. With respect to Section 627.736(5)(a)5, the undisputed facts demonstrate that the Plaintiff’s $60.00 charge is not “less than the amount allowed under subparagraph 1.,” which is 80% of 200% of the Medicare Part B participating physician fee schedule amount (i.e., $50.93).
14. With respect to the policy provision, the undisputed facts demonstrate that the Plaintiff’s $60.00 charge is not “less than the amount allowed above,” which is also 80% of 200% of the Medicare Part B participating physician fee schedule amount (i.e., $50.93).
15. Because the Plaintiff’s $60.00 charge is not “less than” the minimum amount specified by the charged amount provisions of Section 627.736(5)(a)5 and the insurance policy, and instead, exceeds that minimum amount, this Court concludes that this case is not affected by the charged amount provisions of Section 627.736(5)(a)5 and the insurance policy.
16. Because the Plaintiff’s $60.00 charge exceeds 80% of 200% of the Medicare Part B participating physician fee schedule amount (i.e., $50.93), this Court concludes that the provisions of Section 627.736(5)(a)2.f(I) control the outcome of this case, and therefore, the Defendant was required to pay 80% of 200% of the Medicare Part B participating physician fee schedule amount.
17. Accordingly, the alternative argument presented in the Plaintiff’s motion for partial summary judgment is hereby GRANTED, but only to the extent that the Court concludes that the Defendant was required to pay 80% of 200% of the Medicare Part B participating physician fee schedule amount. In all other respects, the Plaintiff’s motion is DENIED.
18. For these same reasons, the Defendant’s motion for summary judgment is hereby DENIED.
19. This is a non-final order, and the Court reserves jurisdiction to determine all other remaining issues in the case.
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1In this order, the “schedule of maximum charges” refers to the list described in Section 627.736(5)(a)1.a-f. The same list appears in the Defendant’s insurance policy.
