26 Fla. L. Weekly Supp. 530b
Online Reference: FLWSUPP 2606FLEUInsurance — Personal injury protection — Transportation costs — Transportation cost is a reimbursable medical benefit under PIP statute only where the transportation is incurred in connection with reasonable and necessary medical treatment — Where underlying treatment that formed basis of insured’s mileage claim was not lawfully rendered, transportation in connection with the treatment is not compensable or reimbursable — Treatment provided by provider that was not appropriately licensed under Health Care Clinic Act was not lawfully rendered — Although clinic may have an exempt status from licensure under subsection 400.9906(4)(g) for services other than PIP services, it must be licensed under Health Care Clinic Act in order to receive reimbursement under PIP statute unless it qualifies for one of six exceptions delineated in section 627.736(5)(h)(1)-(6) — Provider in instant case did not qualify as a clinic where it was not wholly owned by a licensed medical professional
AUGULUS ST. FLEURY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-002026 COSO 60. May 11, 2018. Jane D. Fishman, Judge. Counsel: Stephen A. Cameron, Tamarac, for Plaintiff. Scott E. Danner, Kirwan Spellacy & Danner, P.A., Fort Lauderdale, for Defendant.
ORDER
THIS CAUSE having come on to be heard on Plaintiff’s Motion for Summary Judgment regarding Reasonable, Related and Necessary and the Plaintiff’s Motion for Summary Judgment regarding the Mileage, and the Court having considered same, and being otherwise advised, it is here upon ORDERED AND ADJUDGED that said Motion is hereby DENIED:
FINAL JUDGMENT
THIS CAUSE, having come before the Court on May 3, 2018, on Plaintiff’s Motion for Final Summary Judgment regarding Reasonable, Related and Necessary and Plaintiff’s Motion for Summary Judgment regarding the Mileage and after hearing argument from counsel, it is further ORDERED AND ADJUDGED as follows:
1. Based on the underlying medical, affidavits, discovery responses, medical records and pleadings there is no genuine issue of material fact and Defendant is entitled to Final Judgment as a matter of law.
2. A medical provider must substantially comply with all Florida Statutes in order for its bills to be compensable under no-fault. See F.S. §627.732(11). The issuance of an AHCA clinic exemption is irrelevant to the factual question as to whether the facility is wholly owned by a licensed physician. The statute specifically states that the right to an exemption certificate is limited to “any person or entity providing health care services which is not a clinic, as defined under s. 400.9905.” For the reasons discussed below, INJURY TREATMENT CENTER OF SOUTH FLORIDA, INC. (hereinafter “INJURY TREATMENT CENTER) was not qualified as a clinic because it was not wholly owned by a licensed medical professional.
3. Florida Statutes §§627.736, 400.9905 and 460.4167 each use the term “wholly owned.” These statutes are part of a comprehensive legislative mandate aimed at curtailing fraud and abuse. The everyday definition of wholly pursuant to Merriam-Webster’s Online Dictionary (2010) is; to the full or entire extent: completely. Ownership is defined by Black’s Law Dictionary 1106 (6th Ed. 1990) as the collection of rights allowing one to use and enjoy property, including the right to convey it to others; ownership implies the right to possess a thing, regardless of any actual or constructive control; ownership rights are general, permanent, and inheritable. Ownership rights may be present, future or contingent rights. Taking these definitions together, it is clear that a licensed physician or chiropractic physician did not wholly own INJURY TREATMENT CENTER,
a) That on September 10, 1996 Gary Brown formed a corporation known as Injury Treatment Center of South Florida and issued 1000 shares of common stock.
b) That Gary Brown became the sole director at the clinic on April 21, 1999.
c) Mr. Brown filed an annual report on April 18, 2012 which listed him as the only director and officer at the clinic.
I. The PIP Law
Under the PIP Statute, individuals who are injured in an automobile accident may seek reimbursement for medically necessary expenses (Personal Injury Protection or “PIP” claims”), up to a maximum of $10,000 in benefits. Insurers are only required to pay 80% of all reasonable medical expenses for medically necessary services.
The PIP Statute requires services to be lawfully rendered in order to be compensable. See §627.736(5)(a), Florida Statutes (2013).
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment . . .
“Lawful” or “lawfully”, as defined in §627.732(11), Florida Statutes, means to be “in substantial compliance with all relevant applicable criminal, civil, and administrative requires of state and federal law related to the provision of medical services or treatment.”
Health Care Clinics must comply with the HCCA in order to “lawfully” provide services within the meaning of §627.732(11), Florida Statutes.
The PIP Statute relieves an insurer or insured of the obligation to pay a claim or charges for any service that was not lawful at the time it was rendered. See §627.736(5)(b)(1)(b), Florida Statutes.
(b)1. An insurer or insured is not required to pay a claim or charges:
. . .
b. For any service or treatment that was not lawful at the time rendered;
Thus, services that are performed by a healthcare provider that is not appropriately licensed are not “lawfully” provided as required by Florida’s PIP statute.
III. The Health Care Clinic Act (“HCCA”)
Part X, Chapter 400, Florida Statutes, (2013), the “Health Care Clinic Act” outlines the licensing requirements for health care clinics to operate in the State of Florida.
Subsection 400.9905(4), “Definitions”, defines “clinic”, and therefore which entities are required to be licensed under this Chapter, as “an entity where health care services are provided to individuals and which tenders charges for reimbursement for such services, including a mobile clinic and a portable equipment provider.”
Subsection 400.9905(4), “Definitions”, goes on to provide various exemptions to the definition and licensing requirement of a “clinic”. See 400.9905(4)(a)-(n) for each possible exemption.
In particular, subsection 400.9905(4)(g) provides an exemption for a clinic wholly owned by licensed health care practitioner, which states in pertinent part:
(4) ‘Clinic’ means an entity where health care services are provided to individuals and which tenders charges for reimbursement for such services, including a mobile clinic and a portable equipment provider. As used in this part, the term does not include and the licensure requirements for this part do not apply to. . .
(g) A sole proprietorship, group practice, partnership, or corporation that provides health care services by licensed health care practitioners under . . . chapter 480 [Massage Therapy] . . . and that is wholly owned by one or more licensed health care practitioners, or the licensed health care practitioners set forth in this paragraph and the spouse, parent, child or sibling of a licensed health care practitioner if one of the owners who is a licensed health care practitioner is supervising business activities and is legally responsible for the entity’s compliance with all federal and state laws. However, a health care practitioner may now supervise services beyond the scope of the practitioner’s license, except that, for the purposes of this part, a clinic owned by a licensee in s.456.052(3)(b) which provides only services authorized pursuant to s. 456.053(3)(b) may be supervised by a licensee specified in s. 456.053(3)(b). [Emphasis and redactions supplied for ease of reading]
In 2012, however, the Legislature required mandatory licensing for all clinics holding an exempt status, whether by issuance of Certificate of Exemption or self-determined, in order for clinic to receive reimbursement pursuant to the “PIP Statute”. See, HB 119: Chapter 2003-197, laws of Florida.
Section 400.9905 states, following subsection 400.9905(4)(n):
Notwithstanding this subsection, an entity shall be deemed a clinic and must be licensed under this part in order to receive reimbursement under the Florida Motor Vehicle No-Fault Law, ss. 627.730-627.7405, unless exempted under s. 627.736(5)(h)” (emphasis added).
Hence, a clinic must be licensed under Part X, Chapter 400 to receive reimbursement for PIP benefits, unless it qualifies for an exception listed in Section 627.736(5)(h), which states:
As provided in s. 400.9905, an entity excluded from the definition of a clinic shall be deemed a clinic and must be licensed under part X of chapter 400 in order to receive reimbursement under ss.627.730-627.405. However, this licensing requirement does not apply to:
(1) An entity wholly owned by a physician licensed under chapter 458 or chapter 459, or by the physician and the spouse, parent, child or sibling of the physician;
(2) An entity wholly owned by a dentist licensed under chapter 466, or by the dentist and the spouse, parent, child, or sibling of the dentist;
(3) An entity wholly owned by a chiropractic physician licensed under 460, or by the chiropractic physician and the spouse, parent, child or sibling of the chiropractic physician;
(4) A hospital or ambulatory surgical center licensed under chapter 395;
(5) An entity that wholly owns or is wholly owned, directly or indirectly by a hospital or hospitals licensed under chapter 395; or
(6) An entity that is a clinical facility affiliated with an accredited medical school at which training is provided for medical students, residents or fellows. (Emphasis added)
Accordingly, although a clinic may have an exempt status from licensure under subsection 400.9905(4)(g), for services other than PIP services, it must be licensed under the Health Care Clinic Act in order to receive reimbursement under the PIP statute, unless it qualifies for one of the six exceptions delineated in §627.736(5)(h)(1)-(6) above.
Further, subsection 400.9905(3) provides that “All charges or reimbursement claims made by or on behalf of a clinic that is required to be licensed under this part, but that is not so licensed . . . are unlawful charges, and therefore are not compensable and unenforceable.”
Moreover, Fla Stat. §460.4167 prohibits a layman from employing a chiropractic physician except from several narrowly tailored exceptions. The statute states:
460.4167 Proprietorship by persons other than licensed chiropractic physicians. —
(1) A person may not employ a chiropractic physician licensed under this chapter or engage a chiropractic physician licensed under this chapter as an independent contractor to provide services that chiropractic physicians are authorized to offer under this chapter, unless the person is any of the following:
(a) A sole proprietorship, group practice, partnership, corporation, limited liability company, limited partnership, professional association, or any other entity that is wholly owned by:
1. One or more chiropractic physicians licensed under this chapter;
2. A chiropractic physician licensed under this chapter and the spouse or surviving spouse, parent, child, or sibling of the chiropractic physician; or
3. A trust whose trustees are chiropractic physicians licensed under this chapter and the spouse, parent, child, or sibling of a chiropractic physician.
INJURY TREATMENT CENTER did not fall under any of these exceptions and was not lawfully rendering the treatment to AUGULUS ST. FLEURY.
The cost of transportation is a reimbursable medical benefit under the PIP Statute only where said transportation is incurred in connection with reasonable and necessary medical treatment. Malu v. Sec. Nat’l Ins. Co., 898 So. 2d 69 (Fla. 2005) [30 Fla. L. Weekly S172d] See Hunter v. Allstate Ins. Co., 498 So.2d 514 (Fla. 5th DCA 1986). See also Total Rehab And Medical Centers, Inc. (As Assignee of Liliana Londono), Plaintiff, v. Progressive Express Insurance Company, Defendant. 10 Fla. L. Weekly Supp. 59b, County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 00-18633 COCE 54. October 31, 2002.
In the instant case, the court determines that the underlying treatment that is the basis of the mileage claim was unlawfully rendered and as a result, not reasonable, related or necessary medical treatment and the transportation in connection with the treatment is not compensable or reimbursable.
ORDERED AND ADJUDGED that said Plaintiff’s Motions are hereby: DENIED.
Therefore, Defendant, STATE FARM is not legally obligated to pay the pending claim. As such, final judgment is entered in favor of the Defendant State Farm Mutual Automobile Insurance Company against the Plaintiff AUGULUS ST. FLEURY. The Court reserves jurisdiction to tax attorney fees and costs upon proper motion.
