27 Fla. L. Weekly Supp. 197b

Online Reference: FLWSUPP 2702DOWNInsurance — Personal injury protection — Coverage — Medical expenses — Phrase “allowable amount under the applicable schedule of Medicare Part B for 2007,” as used in PIP statute, refers only to Medicare’s participating physicians fee schedule, not to limiting charge

INDEPENDENT IMAGING, LLC, a/a/o Danirah Downs, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2016-SC007009-XXXX-NB-RH. March 2, 2017. Sandra Bosso-Pardo, Judge. Counsel: Erin Tieso and Michael Walsh, for Defendant.

ORDER GRANTING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court on February 13, 2017 for a hearing on the Defendant’s Motion for Final Summary Judgment, and the Court, having reviewed the Motion, the entire Court file, the relevant legal authorities, having heard the arguments of the parties’ respective counsels, reviewed the entirety of the record, and having been sufficiently advised in the premises, the Court GRANTS the Defendant’s Motion for Final Summary Judgment

QUESTION PRESENTED

The legal issue before the Court is whether the phrase “allowable amount under the applicable schedule of Medicare Part B for 2007” as used in Florida Statute Section 627.736(5)(a)(2)(2012) refers to Medicare’s “Participating/Non-Participating” Fee Schedule or the “Limiting Charge” amount.

LEGAL ANALYSIS

The phrase “allowable amount under the applicable schedule of Medicare Part B for 2007” as used in Florida Statute Section 627.736(5)(a)(2) (2012) refers only to Medicare’s “Participating” fee or “Non-Participating” fee schedule as: (1) “Limiting Charge” amount is not a fee schedule. (2) the “Limiting Charge” is a surcharge born/paid by the Medicare insured; (3) Legislative history, construction, and intent support the incorporation of the “Participating” fee schedule into Florida Statute Section 627.736(5)(a)(2).

Medicare specifies that the Limiting Charge amount is not deemed a fee schedule, and therefore cannot be within the purview of §5(a)(2) which clearly and unambiguously calls for reimbursement pursuant to the “applicable schedule of Medicare Part B for 2007.” See Fla. Stat. §627.736(5)(a)(2). See also Advanced Diagnostic Testing, Inc. v. Allstate Ins. Co., 11 Fla. L. Weekly Supp. 242a, 11th Jud. Cir., Case No. 02-4740 SP (05)3 (Oct. 10, 2003)(holding that the “limiting charge is a surcharge to the beneficiary and/or insured of up to 15% more than the Medicare approved amount.”)

The Limiting Charge was established by Medicare to provide certain protection for those beneficiaries who elect to treat with non-participating providers who do not accept the assignment of the claim. The beneficiary, not Medicare is responsible for the difference between the fee schedule amount and the Limiting Charge. See Advanced Diagnostic Testing, 11 Fla. L. Weekly Supp. 242a (holding that the limiting charge is specifically borne by the patient, not Medicare). Medicare’s participating fee schedule is expressly premised on the existence of such an assignment; whereas, Medicare’s limiting charge is expressly premised on the absence of such an assignment. See Advanced Diagnostic Testing, 11 Fla. L. Weekly Supp. 242a.

Application of the “Limiting Charge” would erroneously interchange the obligation of the Medicare insured with that of the Florida PIP insured when an assignment of benefits exists. While the Medicare Part B statute in its explanation clearly identified a Medicare insured as the party who assumes the burden of the limiting charge, nowhere in Florida’s PIP Statute nor its legislative history reflect any corresponding obligation on the part of the PIP insured to be responsible for the limiting charge. To the contrary, the term “limiting charge” is not found anywhere in the entire PIP statute because the statute was enacted to regulate the insurer-provider billing relationship, not the patient-provider billing relationship.

Here, it is worth noting that the term “limiting charge” is not mentioned anywhere in the PIP statute and thus §(5)(a)2 should be “construed as excluding” same. See also, Republican Party of Miami-Dade Cty. v. Davis, 18 So. 3d 1112, 1117 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1754a] (stating that different statutory provisions should be construed together to harmonize, give effect to the legislature’s intent, and avoid rendering one of two provisions meaningless.)

An interpretation of §(5)(a)2 finding that the “participating physicians fee schedule” is applicable is in harmony with the PIP statute:

1) §(5)(a)2 specifically states “for the purposes of subparagraph 1. . .” When looking at “subparagraph 1” which precedes §(5)(a)2 it very clearly states:

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

a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.

b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.

c. For emergency services and care as defined by s. 395.002 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.

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:

(I) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).

(II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.

(III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.

However, if such services supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 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 is not required to be reimbursed by the insurer.

The charges submitted by the Plaintiff in this case directly fall under §(5)(a)(1)(f) which clearly states “the participating physicians fee schedule of Medicare Part B. . .” To the contrary, the term “limiting” charge is not only not mentioned under §(5)(a)(1)(f) but is not mentioned anywhere in the entire PIP Statute.

2)

An interpretation applying the “Limiting Charge” would effectively rewrite the PIP Statute to allow the “maximum allowable amount” which would be in opposition to the Legislative intent to reduce excessive charges.

If the Legislative intent was to allow the “maximum allowable amount” the Legislature would’ve simply stated so in §(5)(a)2. In drafting other amendments to the PIP Statute such as §(5)(a), the legislature specifically used the term “maximum” to describe the reimbursement allowance amount permitted under workers’ compensation. Specifically, the Legislature used the following language in drafting §(5)(a):

However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation. . . .

As the Legislature specifically elected to utilize the term “allowable amount” as opposed to “maximum allowable amount” or “limiting charge” the most sensible reading of the phrase “allowable amount” is application of the participating physicians fee schedule.