26 Fla. L. Weekly Supp. 121c
Online Reference: FLWSUPP 2602MERCInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Notice to insured — PIP policy that states that insurer will determine to be unreasonable any charges that exceed maximum charges set forth in section 627.736(5)(a)2 and will limit reimbursement to 80% of schedule of maximum charges provided adequate notice to insured that insurer could limit payment pursuant to the schedule of maximum charges — Inclusion in policy of statement that insurer may use fact-based method to determine reasonableness of charges does not render policy language ambiguous
SEA SPINE ORTHOPEDIC INSTITUTE, LLC a/a/o Carlisle Marcano, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-SC-001351-O, Civil Division. May, 24, 2017. Faye L. Allen, Judge. Counsel: Richard Shuster, Schuster & Saben, Satellite Beach, for Plaintiff. Michael V. Hammond and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.ORDER ON COMPETING MOTIONS FOR SUMMARYJUDGMENT AS TO THE APPLICATION OFTHE MEDICARE FEE SCHEDULE
THIS CAUSE having come before the Court on March 22, 2017 on the parties competing motions for summary judgment, and the Court having heard argument of counsel, and being otherwise advised in the premises, finds as follows:
UNDISPUTED FACTS
The facts in this case are undisputed. Progressive Select Insurance Company (“Progressive”) issued a personal automobile insurance policy, form 9611D FL (07/13) to its insured that provided Personal Injury Protection (“PIP”) coverage subject to the terms, conditions and exclusions contained within the policy and applicable Florida law, including, but not limited to Fla. Stat., §627.736. The effective dates of the policy was from 10/2/2014 through 4/2/2015. The policy had no deductible.
On January 15, 2015, Carlisle Marcano was injured in a motor vehicle accident. He sought medical treatment from Plaintiff for said injuries. Plaintiff submitted CMS 1500 claim forms and other medical records seeking payment for medical services it provided to Mr. Marcano purportedly caused by the motor vehicle accident. Upon receipt of Plaintiff’s claims, Progressive paid Plaintiff the amounts identified in the Explanation of Benefits (“EOB”) and the Medial Payments Detail attached to the affidavit of Christina A. Barrow. It is undisputed that Progressive allowed and paid 80% of 200% of the Medicare Part B Fee Schedule.
DEFENDANT’S POSITION
Defendant’s Position is that pursuant to Fla. Stat. §627.735(5)(a)5, it gave proper notice to the insured (and to any medical provider of the insured) that it may limit payment pursuant to the schedule of maximum charges provided for in Fla. Stat. §627.736(5)(a)2
PLAINTIFF’S POSITION
Plaintiff’s position is that the Defendant’s policy is ambiguous because Defendant included language in the policy that it will reduce any payment to a medical provider by any amounts it deemed to be unreasonable medical benefits.
ANALYSIS
The Florida Supreme Court in Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298 (Fla 2017) [42 Fla. L. Weekly S38a], recently clarified the very issue that Plaintiff argues creates an ambiguity. In Orthopedic Specialists, the Court dispelled the medical provider’s argument that policy was ambiguous because it allowed Allstate to utilize the fact based method of determining the reasonableness of the charges while at the same time providing the it may limit charges based on the fee schedule contained in Fla. Stat. 627.736(5)(a)2. Specifically, the medical provider argued that Allstate’s policy was ambiguous under Geico v. Virtual Imaging, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] because it failed to state
that Allstate (1) will not actually pay eighty percent of reasonable charges and (2) will instead calculate benefits only under the permissive Medicare fee schedules contained within section 627.736(5)(a)2.
The Supreme Court specifically found that the medical provider’s argument misconstrues Virtual Imaging because
[A] PIP policy cannot contain a statement that the insurer will not pay eighty percent of reasonable charges because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate. See Virtual Imaging, 141 So. 3d at 155. Furthermore, a PIP policy cannot state that the insurer will calculate benefits solely under the Medicare fee schedules contained within section 627.736(5)(a)2. because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology. See id. at 159 (explaining that “the Medicare fee schedules are not the only mechanism for calculating reimbursements”). Compare § 627.736(5)(a)2.a., d.-f., Fla. Stat. (referring to the Medicare fee schedules), with § 627.736(5)(a)2.b.-c., Fla. Stat. (referring to the non-Medicare fee schedules). (emphasis added)
The Court went on to state that
[T]he PIP statute sets forth a basic coverage mandate: every PIP insurer is required to — that is, the insurer ‘shall’ — reimburse eighty percent of reasonable expenses for medically necessary services.” Virtual Imaging, 141 So. 3d at 155. This provision — the reasonable medical expenses coverage mandate — is “the heart of the PIP statute’s coverage requirements.” Id. “[T] here are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate.” Id. at 156 (emphasis omitted). Compare § 627.736(5)(a)1., Fla. Stat. (2009), with § 627.736(5)(a)2., Fla. Stat. (2009). Under the first payment methodology contained within section 627.736(5)(a)1., “reasonableness is a fact-dependent inquiry determined by consideration of various factors.” Virtual Imaging, 141 So. 3d at 155-56. Under the alternative, permissive payment methodology contained within section 627.736(5)(a)2., “insurers ‘may limit reimbursement’ to eighty percent of a schedule of maximum charges set forth in the PIP statute.” Id. at 154 (quoting § 627.736(5)(a)2., Fla. Stat.). Reimbursements made under section 627.736(5)(a)2. satisfy the PIP statute’s reasonable medical expenses coverage mandate. See id. at 150, 156-57. (emphasis added)
The Court also noted that there are no magic words required to elect the right to utilize the schedule of maximum charges. . The Court ruled that Allstate’s policy which provided that “any amounts payable for medical expense reimbursements shall be subject to any and all limitations, authorized by section 627.736, . . . including . . . all fee schedules” satisfied the notice requirements.” Id. If the mere mention that payments may be subject to the fee schedules is sufficient notice by Allstate, Progressive’s policy language clearly satisfied the notice requirements. In addition, the Florida legislature amended the No Fault Statute in 2012, with the addition of Fla Stat 627.736(5)(a)5, which states:
An insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. 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.
All that is required is simple notice that the insurer may utilize the fee schedule under Fla. Stat. §627736(5)(a)5.
The applicable policy provisions are as follows:
Unreasonable or Unnecessary Medical Benefits. If an insured person incurs medical benefits that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.
We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.736 (5)(a)(2) (a through f) of the Florida Motor Vehicle No-Fault Law, as amended. Pursuant to Florida law, we will limit reimbursement to, and pay no more than, 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;
a. 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;
b. for emergency services and care as defined by Section 395.002 of the Florida Statutes, provided in a facility licensed under Chapter 395 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;
c. 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;
d. 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; and
e. for all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B, except as follows:
(1) for services, supplies and care provided by ambulatory surgical centers and clinical laboratories, 200 percent of the allowable amount under Medicare Part B; and
(l) for durable medical equipment, 200 percent of the allowable amount under “The Durable Medical Equipment Prosthetics/Orthotics and Supplies” fee schedule of Medicare Part B.
However, if such services, supplies or care is not reimbursable under Medicare Part B, as provided in this subsection f., we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 of the Florida Statutes, 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 us.
The applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the year in which the services, supplies or care is rendered and for the area in which such services, supplies or care is rendered. This applicable fee schedule or payment limitation applies throughout the remainder of that year, notwithstanding any subsequent change made to the fee schedule or payment limitation, except that it may not be less than the allowable amount under the applicable schedules of Medicare Part B for 2007 for medical services, supplies and care subject to 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: coding edits, both mutually exclusive and inclusive, payment limitations, and coding guidelines subject to the National Correct Coding Initiative (NCCI), Hospital Outpatient Prospective Payment System (OPPS), Multiple Procedure Payment Reduction (MPPR), and Multiple Surgery Reduction Rules (MSRR). (emphasis added)
We will reduce any payment to a medical provider under this Part II(A) by any amounts we deem to be unreasonable medical benefits. However, the medical benefits shall provide reimbursement only for such services, supplies and care that are lawfully rendered, supervised, ordered or prescribed. Any reductions taken will not affect the rights of an insured person for coverage under this Part II(A). Whenever a medical provider agrees to a reduction of medical benefits charged, any co-payment owed by an insured person will also be reduced.
The insured person shall not be responsible for payment of any reductions applied by us. If a medical provider disputes an amount paid by us, we will be responsible for resolving such dispute. If a lawsuit is initiated against an insured person as a result of the reduction of a medical bill by us, other than reductions taken pursuant to FL St. 627.736 (5)(a)(1) (a through f), we will provide the insured person with a legal defense by counsel of our choice, and pay any resulting judgment. The insured person must cooperate with us in the defense of any claim or lawsuit. If we ask an insured person to attend hearings or trials, we will pay up to $200 per day for loss of wages or salary. We will also pay other reasonable expenses incurred at our request.
Consistent with the Orthopedic Specialist decision, Progressive clearly stated that it will determine to be unreasonable any charges that exceed the schedule of maximum charges provided for pursuant to Fla. Stat. §627.736(5)(a)2. Progressive also clearly stated that it will limit reimbursement to, and pay not more than 80% of the schedule of maximum charges.
In is undisputed that Plaintiff charges exceed 200% of the schedule of maximum charges and that Progressive limited the charges accordingly to the schedule of maximum charges.
Plaintiff argues that because Progressive also included a policy language that it will reduce any payment for medical services that it deems to be unreasonable medical benefits, the policy is ambiguous. Simply stating that Progressive may use the fact based method to determine the reasonableness of Plaintiff’s charges, which must be included in the policy pursuant to Orthopedic Specialist, does not render the policy language ambiguous. It simply complies with the statutory requirements of Fla. Stat. §627.736(5)(a).
It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. See also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [27 Fla. L. Weekly S860a] (“[T]he Legislature does not intend to inact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”). The PIP statute clearly allows for both methods for satisfying the reasonable medical expenses mandate. When read as a while, Progressive’s policy clearly follows the statute.
This Court is persuaded by and bound by the Supreme Court’s decision in Orthopedics Specialists. Progressive complied with its statutory obligation to include the fact based method for determining what satisfies the reasonable medical expense requirement pursuant to Fla. Stat. §627.736(5)(a) in its policy. Moreover, Progressive also gave clear notice to the insured that it will deem any charges in excess of the schedule of maximum charges to be unreasonable and the it will pay no more than the schedule of maximum charges.
IT IS THEREFORE
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment against the Plaintiff, Sea Spine Orthopedic Institute, LLC, is GRANTED, as the pleadings, affidavits, and other materials as would be admissible in evidence on the file show that there is no genuine issue of material fact and that as a matter of law, the Defendant has no liability to the Plaintiff. Plaintiff’s Motion for Summary Judgment is DENIED. Plaintiff shall take nothing by this action and Defendant shall go hence forth without day. The Court reserves jurisdiction to determine entitlement and amount of attorney’s fees and costs to the Defendant, upon a timely motion.
