26 Fla. L. Weekly Supp. 139b

Online Reference: FLWSUPP 2602FERDInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will determine to be unreasonable any charges that exceed schedule of maximum charges provided pursuant to section 627.736(5)(a)2 and will limit reimbursement to 80% of schedule of maximum charges clearly and unambiguously elects to limit payment pursuant to permissive statutory fee schedules — Inclusion in policy of statement that insurer will pay 80% of all reasonable expenses does not render policy language ambiguous — Physician fee schedule published by federal Department of Health and Human Services on CMS website is not hearsay — Insurer properly reimbursed medical provider in compliance with Medicare fee schedule and is entitled to summary judgment

APPLE MEDICAL CENTER, LLC, a/a/o Louis Jean Ferdinand, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2015-80-SP-25 (02). April 19, 2017. Gina Beovides, Judge. Counsel: Michael J. Feldman, Law Offices of Michael J. Feldman, P.A., Coral Gables, for Plaintiff. Shelby L. Cohen, Progressive PIP House Counsel, Medley, for Defendant.

ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY .JUDGMENT

THIS CAUSE came before the Court on February 23, 2017 to be heard on Defendant’s Motion for Final Summary Judgment and after hearing testimony and reviewing the evidence and case law, the Court finds as follows:

Plaintiff filed this breach of contract action against Defendant in small claims court on or about January 6, 2015, for benefits it claimed to be due and owing under the insurance policy Progressive issued to the claimant and assignor, Louis Jean Ferdinand. Defendant contends that its policy and A-85 Endorsement properly incorporates the fee schedules stated in Fla. Stat. 627.736(5)(a), and puts the insured on notice of its intention to utilize the fee schedules and pay accordingly. Plaintiff contends numerous arguments to the contrary.

On motion for summary judgment, the moving party must prove the absence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). The moving party’s proof must overcome all reasonable inferences drawn in favor of the opposing party. Id. The non-moving party will only be required to prove that issues of material fact exist once the moving party has satisfied its burden. Id.

In support of its Motion for Summary Judgment, Defendant provided the Amended Affidavit of Thomas Soich. In the Affidavit, Mr. Soich attached a copy of the insurance policy the Defendant issued to the insured, Louis Jean Ferdinand for the relevant policy period. Specifically, the Affidavit attached a Declarations Page stating the policy contract is form 9610D FL (10/05) and modified by forms A085 FL (05/12) and Z357(10/10). The Affidavit attests that this is a true and accurate copy of the insurance policy that applies to the insured in this case. As the moving party, Defendant has the initial burden to prove the absence of any genuine issue of material fact. When Defendant presented the Affidavit of Mr. Soich, the records custodian of the insurance policy, in which he attested that Exhibit A was a true and correct copy of the applicable insurance policy, Defendant satisfied that initial burden.

Plaintiff however, contends that there is a discrepancy between the Declarations Page and the insurance contract provided by Defendant, in as much as the Declarations Page contains the words 9610D FL, “Version 2.0,” which is somehow different than the policy issued to the Defendant. The Court is not persuaded by Plaintiff’s argument, and finds that the Defendant has properly authenticated the insurance policy issued to the Defendant during the relevant period.

This case is controlled by the version §627.736 of the Florida Statutes (2012-2016), as amended in 2012 and in effect since January 1, 2013. Florida law is clear that the courts give effect to the plain meaning of the statutes. State v. Warren, 796 So. 2d 489 (Fla. 2001) [26 Fla. L. Weekly S434b]. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). Additionally, when interpreting an insurance contact, a court must look at the plain and unambiguous language in the policy so as to give effect to the policy as written. Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a]. If a policy is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, then it is deemed to be ambiguous and should be construed against the drafter and in favor of the insured. Geico General Insurance Co. v. Virtual Imaging, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].

The applicable Florida Motor Vehicle No-Fault Law states as follows:

1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

***

f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(1) The participating physicians fee schedule of Medicare Part B. . .

Fla. Stat. 627.736(5)(a)(1)(f)(1)(2013).

Progressive’s insurance policy and A-85 Endorsement states in relevant part:

We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in [§627.736(5)(a)(1)(a through f)]. . .we will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges:

. . .

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[.]

In determining the appropriate reimbursement under the applicable Medicare fee schedule, all reasonable, medically necessary, and covered charges for services, supplies and care submitted by physicians, non-physician practitioners, or any other provider will be subject to the Center for Medicare Services (CMS) coding policies and payment methodologies, including applicable modifiers. The CMS policies include, but are not limited to:. . . Multiple Procedure Payment Reduction (MPPR)[.]

We will reduce any payment to a medical provider under this Part II(A) by any amount we deem to be unreasonable medical benefits.

The endorsement also replaced the “Medical benefits” definition of Part 11(A) of the insurance policy with the following definition:

“Medical Benefits” means 80% of all reasonable expenses incurred for medically necessary medical, surgical, x-ray, dental and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services.

See, Exhibit “A” to Amended Affidavit of Thomas Soich.

In the matter sub judice, the Court finds that Defendant incorporated the permissive fee schedule outlined in the Florida No-Fault Law, and clearly and unambiguously elected to use the schedule of maximum charges and CMS payment methodologies. This election plainly satisfies the notice requirement as set forth in Virtual Imaging. See Allstate Insurance Company v. Orthopedic Specialists, SC15-2298, January 26, 2017 [42 Fla. L. Weekly S38a], Rehearing Denied on March 27, 2017(citing Stand-Up MRI, 188 So. 3d at 3) (“Virtual Imaging requires no other magic words from Allstate’s policy and its simple notice requirement is satisfied by Allstate’s [unambiguous] language limiting ‘[a]ny amounts payable’ to the fee schedule-based limitations found in the statute).

Additionally, Defendant’s policy stating that it will pay 80 percent of all reasonableness expenses incurred for medically necessary benefits does not create an ambiguity. A PIP policy is mandated by statute to pay 80 percent of reasonable charges. See Virtual Imaging, 141 So. 3d 155; Allstate Insurance Company v. Orthopedic Specialists, SC15-2298, January 26, 2017 [42 Fla. L. Weekly S38a], Rehearing Denied on March 27, 2017. Furthermore, as noted most recently by the Supreme Court in Orthopedic Specialists, a PIP policy cannot contain a statement that the insurer will calculate benefits solely under Medicare fee schedules because Medicare fee schedules are not the only applicable mechanism for calculating reimbursement under the permissive payment methodology. Orthopedic Specialists, SC1 5-2298, at 9-10 (citing Virtual Imaging, 141 So. 3d at 159. Florida Statute 627.736(5)(a)2.a., d-f refers to the Medicare fee schedules, whereas Florida Statute 627.736(5)(a)2.b-c refers to the non-Medicare fee schedules. Here, Defendant’s policy goes on in detail the manner in which Progressive determines what qualifies as reasonable pursuant to section 627.736(1)(a). In doing so, the policy clearly states the Defendant will be using the schedule of maximum charges and CMS payment methodologies, and as such, satisfies the notice requirement. This court finds persuasive the reasoning and analysis set forth by Judge Bloom in John S. Virga, D.C., P.A. v. Progressive American Insurance Company, Case No. 16- cv-60329, U.S. District Court, S.D. Fla. (June 28, 2016) [27 Fla. L. Weekly Fed. D3a].

Lastly, the sole remaining issue is whether Defendant indeed paid in accordance with the fee schedule. In support of its Motion for Summary Judgment, Defendant filed the Amended Affidavit of Thomas Soich. Mr. Soich presents evidence that Defendant paid in conformity with the participating fee schedule by allowing $450.32 and paying $360.26 for CPT Code 99205 for date of service August 30, 2013. This amount represents 80% of 200% of the Medicare Part B participating physician fee schedule for the year the service was rendered and in the locality of Miami-Dade County.

Plaintiff objects to Defendant’s reliance on the reimbursement amount, which Defendant obtained through the CMS webpage, hearsay grounds. Effective January 1, 2012, the Department of Health and Human Services, through CMS, stopped publishing the fee schedules in the federal register and began providing the information through the Internet on the CMS Web site at http://www.cms.gov/. See Federal Register, Vol. 76, No. 228, Part II, P. 33, 033 (Nov. 28, 2011). As stated by Judge Ungaro in the State Farm decision, supra, CMS, as the pertinent federal agency “annually updates and approves the physician schedule,” providing “the pricing amounts for any particular year, service, location, etc. . . at the CMS website: www.cms.hhs.gov/PFSlookup/.” See State Farm, 685 F. Supp. 2d at 1299, n.2. That a federal agency chose to publish the fee payment schedule through CMS website rather than in a book does not transform the information into hearsay. As such, this Court determines that the fee schedule published by the federal government on the CMS website is not hearsay.

In rebuttal of Defendant’s contentions that payment was properly made pursuant to the fee schedules, Plaintiff submitted the Affidavit of Michael Limond. Mr. Limond’s Affidavit however, is solely based on his personal experience as a billing supervisor and administrator at Apple Medical Center and therefore irrelevant as to whether Defendant did indeed pay in accordance with the fee schedule. Likewise, the Court finds the Affidavit of Thomas Jelen, records custodian for the American Speech-Language-Hearing Association (ASHA) to be irrelevant. Mr. Jelen’s Affidavit included the 2012 Medicare Fee Schedule For Speech-Language Pathologists. These fee schedules are not the Medicare Part B Participating Physician fee schedule at issue in this case, and they are not of the year in which the services were rendered in this matter. Therefore, this Court finds that Defendant properly reimbursed Plaintiff in compliance with the participating physician fee schedule under Medicare Part B, and as such, Defendant is entitled to summary judgment as a matter of law. For the foregoing reasons, Defendant’s Amended Motion for Summary Judgment is hereby GRANTED.

Although this Court grants Defendant’s Motion for Summary Judgment, this Court declines to award sanctions pursuant to §57.105 of the Florida Statutes. The Court finds that this is not a simple legal issue and notes that other county court orders throughout the state that have found Defendant’s policy to be ambiguous. For these reasons, Defendant’s Motion for Sanctions Pursuant to §57.105 is hereby DENIED.