25 Fla. L. Weekly Supp. 537a
Online Reference: FLWSUPP 2506VJOHInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will limit reimbursement to 80% of reasonable expenses but in no event will pay any amount in excess of 80% of schedule of maximum charges and makes specific reference to Medicare fee schedules clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedules
WHOLE HEALTH CLINIC D/B/A HEALTHSOURCE OF TALLAHASSEE a/a/o Veronica Johnson, Plaintiff, v. SECURITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2016-SC-001761. August 10, 2017. Stephen Sebastian Everett, Judge. Counsel: Adam Saben, Jacksonville, for Plaintiff. Dorian George, Tampa, for Defendant.
FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
THIS MATTER having come before the Court on the Defendant’s Motion for Summary Judgment and Plaintiff’s Amended Motion for Summary Judgment on May 22, 2017, and the Court having reviewed the pleadings, memoranda and submitted case law, the evidence, and argument of counsel, and being otherwise fully advised in the premises, the Court makes the following findings:
FACTUAL BACKGROUND
1. At issue in this case is the sufficiency of the Defendant’s policy language.
2. The sole issue in this case is whether Security National Insurance Company’s policy language provides a clear and unambiguous election of the fee schedule payment methodology authorized by Section 627.736(5)(a), F.S. (2012).
3. The parties agree that there are no disputes regarding the subject loss, applicable personal injury protection coverage, the reasonableness, relatedness or necessity of Whole Health Clinic d/b/a Healthsource of Tallahassee’s medical billing for dates of service September 4th, 2014 through October 8th, 2014 and standing pursuant to the assignment of benefits from the Claimant to Whole Health Clinic d/b/a Healthsource of Tallahassee and from Whole Health Clinic d/b/a Healthsource of Tallahassee to Plaintiff. Therefore, there are no disputed issues of material fact.
4. SECURITY NATIONAL INSURANCE COMPANY’s (“SNIC”) applicable policy endorsement FLSNPIP01 07/12 provides as follows:
PERSONAL INJURY PROTECTION COVERAGEINSURING AGREEMENT
“1. Medical Benefits — Eighty percent of all reasonable expenses (as defined in this policy) for medically necessary medical, surgical, x-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. However, the medical benefits shall provide reimbursement only for such services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided by any of the following persons or entities:
a. A hospital or ambulatory surgical center licensed under chapter 395.
b. A person or entity licensed under §§401.2101-401.45 that provides emergency transportation and treatment.
c. An entity wholly owned by one or more physicians licensed under chapter 458 or chapter 459, chiropractic physicians licensed under chapter 460, or dentists licensed under chapter 466 or by such practitioner or practitioners and the spouse, parent, child, or sibling of that practitioner or those practitioners.
d. An entity wholly owned, directly or indirectly, by a hospital or hospitals.
e. A health care clinic licensed under §§400.990-400.995 that is:
i. Accredited by the Joint Commission on Accreditation of Healthcare Organizations, the American Osteopathic Association, the Commission on Accreditation of Rehabilitation Facilities, or the Accreditation Association for Ambulatory Health Care, Inc.; or
ii. A health care clinic that:
(1) Has a medical director licensed under chapter 458, chapter 459, or chapter 460;
(2) Has been continuously licensed for more than three years or is a publicly traded corporation that issues securities traded on an exchange register with the United States Securities and Exchange Commission as a national securities exchange; and
(3) Provides at least four of the following medical specialties:
(a) General medicine.
(b) Radiography.
(c) Orthopedic medicine.
(d) Physical medicine.
(e) Physical therapy.
(f) Physical rehabilitation.
(g) Prescribing or dispensing outpatient prescription medication.
(h) Laboratory services.”
The definition of reasonable expenses in the FLSNPIP01 (07/12) endorsement is defined under ADDITIONAL DEFINITIONS UNDER PART C — no. 6:
“Reasonable expenses shall mean the lesser of the amount provided by any schedule of maximum charges,, whether mandatory or permissive, as contained in the Florida Motor Vehicle No-Fault Law (§§627.730-627.7405, Florida Statutes) as may be amended from time to time or the amount the person or institution customarily charges for like services or supplies.”
Under LIMITS OF LIABILITY, SNIC’s FLSNPIP01 (07/12) endorsement states reimbursement as follows
“4. We shall limit reimbursement to 80 percent of all reasonable expenses. However, in no event shall we pay any amount in excess of 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401 of the Florida Statutes, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395 of the Florida Statutes, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002 of the Florida Statutes provided in a facility licensed under chapter 395 of the Florida Statutes rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. However, if such services, supplies or care is not reimbursable under Medicare Part B, the insurer shall limit reimbursement to 80 percent of the maximum reimbursable allowance under workers; compensation, as determined under s. 440.13 of the Florida Statues and rules adopted thereunder which are in effect at the time such services, supplies or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by the insurer.
For purposes of the above, the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it will not be less than the allowable amount under the participating physicians schedule or Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
Immediately below this language is a section titled UNREASONABLE OR UNNECESSARY MEDICAL EXPENSES, SNIC’s FLSNPIP01 (07/12) endorsement states: “If an injured person incurs medical expenses that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical expenses and contest them. . .”DISCUSSION
Plaintiff properly concedes that the above-quoted section of LIMITS OF LIABILITY, standing alone, would constitute valid notice that the Defendant was electing the Medicare fee schedule payment method. However, Plaintiff argues that the inclusion of the UNREASONABLE OR UNECESSARY MEDICAL EXPENSES language immediately following the LIMITS OF LIABILITY incorporates a reasonableness analysis making the entire policy ambiguous because the payment methodologies have been comingled and no clear and unambiguous election has been made. The Plaintiff’s interpretative argument has some persuasive aspects, but is not consistent with the binding case law that the Court must follow.
The First District Court of Appeal found in Allstate v. Stand-Up MRI, that a personal injury protection insurance policy provided legally sufficient notice of a Medicare fee schedule election based upon the following language. “Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.” Stand-Up MRI, 188 So. 3d at 3 (emphasis added) [40 Fla. L. Weekly D693b]. This reasoning used by the First District Court of Appeal was approved of by the Florida Supreme Court in Allstate v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. Orthopedic Specialists specifically resolved a conflict between the First and Fourth District Courts of Appeal on the interpretation of personal injury protection insurance policies.
In reading the opinions from Stand-up MRI and Orthopedic Specialists, the Court understands that fee schedules are one of the limitations of payment. However, the Stand-up MRI ruling permits payments to be limited by the “reasonableness” methodology — that is certainly one of the “any and all limitations” in Section 627.736, F.S. — as well as any other limitation contained in Section 627.736, F.S. The Defendant’s insurance policy makes a specific reference to the Medicare fee schedules right before it also reserves the right to use a reasonableness methodology. Based on binding precedent, the Defendant’s insurance policy provides legally sufficient notice to the policyholder and/or medical providers. Accordingly, it is
ORDERED and ADJUDGED:
1. Plaintiff’s Motion for Summary Disposition is DENIED.
2. Defendant’s Motion for Summary Judgment is GRANTED and FINAL JUDGMENT is hereby entered in favor of the Defendant and against the Plaintiff.
