27 Fla. L. Weekly Supp. 971a
Online Reference: FLWSUPP 2711CROCInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that limits reimbursement to 80% of 200% of allowable amount under Medicare Part B fee schedule clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule — Policy does not create unlawful hybrid payment methodology — Insurer properly reimbursed medical provider using participating physicians fee schedule specified in policy rather than non-facility limiting charge
MRI ASSOCIATES OF LAKELAND LLC d/b/a HIGHLAND MRI a/a/o Eddie Crockett, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2018 16158 CODL, Division 73 (MILLER). December 4, 2019. A. Christian Miller, Judge. Counsel: Michelle Reeves, Ocala, for Plaintiff. Benjamin Floyd and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.
FINAL SUMMARY JUDGMENT
This matter is before the court on the Defendant’s Motion for Summary Disposition/Judgment filed on April 5, 2019. The court has reviewed the Motion and the Plaintiff’s Response, conducted a hearing on the matters, and considered the arguments and authorities cited by the parties. Based upon the above, the court finds and rules as follows.
Factual Findings
On August 25, 2013, Eddie Crockett was injured in a car crash. As part of his resulting medical treatment, Mr. Crockett received an MRI from MRI Associates of Lakeland LLC, a medical provider operating under the name “Highland MRI” (“Highland”). Highland agreed to bill Mr. Crockett’s insurance company directly for its services under an assignment of benefits. Accordingly, Highland later billed Progressive American Insurance Company (“Progressive”) $2,400.00 for an MRI it provided to Mr. Crockett on October 9, 2013.
Under the terms of Mr. Crockett’s PIP insurance policy, Progressive allowed $1,006.02 of Highland’s original billed amount based upon 200% of the 2007 participating level of Medicare physicians fee schedule. Progressive then reimbursed Highland 80% of the allowed amount, for a total payment of $804.82.
The relevant policy language in Progressive’s policy endorsement reads as follows:
UNREASONABLE OR UNNECESSARY MEDICAL BENEFITS
If an injured 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)(1)(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:
. . .
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, except as follows:
. . .
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.
. . .
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. . . .
Form A085 FL (05/12), page 1 (emphasis in original).
Analysis and Conclusions of Law
As a preliminary matter, the court finds that there is no triable issue of fact, and thus the court must only determine if Progressive is entitled to a judgment as a matter of law. See Fla. Sm. Cl. R. 7.135. Based upon the arguments and authorities raised by the parties, the court believes that determination turns on the resolution of two legal issues: (1) did Progressive provide sufficient notice of its intent to use fee schedule payment limitations and (2) if so, did Progressive correctly apply the limitations to Highland’s bill? Each of these issues will be addressed in turn below.
I. Sufficiency of Notice — Fee Schedule Payment Limitations
Section 627.736(5)(a)5, Florida Statute (2013)1 provided “Effective July 1, 2012, 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. . . .” Thus under the plain language of the statute in effect at the time this action arose, Progressive only had to provide notice at the time of issuance or renewal of the policy that it may limit payment pursuant to the Medicare fee schedules.
As the parties are keenly aware, in Geico v. Virtual Imaging, the Florida Supreme Court previously declared that an insurer must “clearly and unambiguously elect the permissive payment methodology in order to rely on it.” 141 So.3d 147, 158 (Fla. 2013) [38 Fla. L. Weekly S517a]. However, the Virtual Imaging Court was interpreting and applying the 2008 version of the PIP statute, which did not contain the simple notice requirement added by the Legislature in the 2012 amendment. In fact, the Supreme Court recognized this distinction and explicitly limited the application of its holding in Virtual Imaging to just those cases arising under pre-July 1, 2012 policies. Id. at 150 (“Because the GEICO policy has since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements, and the Legislature has now specifically incorporated a notice requirement into the PIP statute, effective July 1, 2012, see § 627.736(5)(a) 5., Fla. Stat. (2012), our holding applies only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July 1, 2012.”). Thus it appears that as a result of the legislative amendments in 2012, as of July 1, 2012, the “clear and unambiguous” election standard was replaced with a simple notice requirement.
Upon a review of Progressive’s policy language in this case, Progressive provided notice to the policyholder (and any subsequent assignees such as Highland) that it intended to apply the Medicare fee schedule limitations with the language that reads “Pursuant to Florida law, 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. . .” Form A085 FL (05/12), page 1 (emphasis added). Progressive’s policy clearly put Mr. Crockett and his assignees on notice that it “will limit reimbursement” and further, that the limitation will be calculated by using “participating physicians fee schedule of Medicare Part B.” As stated above, the statute now only requires simple notice that an insurer may limit payment. The policy language at issue in this case satisfies this requirement.
Highland also argues that Progressive’s policy creates an unlawful hybrid payment methodology which blends together the reasonable expenses methodology with the permissive fee schedule payment limitation methodology. This argument is unavailing. As the Second District Court of Appeal recently explained in State Farm v. MRI Associates of Tampa,
In 2012 the legislature substantially amended section 627.736(5), setting forth the schedule of maximum charges limitation as a subsection of the reasonable charge calculation methodology. Ch. 2012-197, § 10, at 2743-44, Laws of Fla. As a result of this amendment, the reasonable charge and schedule of maximum charges methodologies are no longer coequal subsections of 627.736(5)(a); instead the reasonable charge method is set forth in subsection (5)(a), and the schedule of maximum charges limitation is provided in subsection (5)(a)(1). Based on the current construction of the PIP statute, we conclude that there are no longer two mutually exclusive methodologies for calculating the reimbursement payment owed by the insurer.
State Farm Mut. Auto. Ins. Co. v. MRI Assocs. of Tampa, Inc., 252 So. 3d 773, 777-78 (Fla. Dist. Ct. App. 2018) [43 Fla. L. Weekly D1149a], review granted, No. SC18-1390, 2019 WL 3214553 (Fla. July 17, 2019) (emphasis added).
II. Proper Application of Fee Schedule Limitations
Highland also argues that Progressive used the wrong fee schedule in calculating the reimbursements. Highland contends that due to alleged ambiguities in its policy language as to which fee schedule would be used, Progressive should have used the fee schedule that resulted in the highest rate of reimbursement. At the hearing, Highland agreed that as it was not a facility, and thus the non-facility rate would apply. Highland did dispute, however, that Progressive properly used the non-facility base rate ($503.01) instead of the non-facility limiting charge ($549.54), which would have resulted in an additional $74.44 in reimbursement (80% of 200% of the fee schedule amount).
First, the court looks to the policy language to determine if there is any ambiguity about which fee schedule rate would be applied. In the language of Progressive’s policy at issue, it provides “for all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. . . .” Form A085 FL (05/12), page 1 (emphasis added). Highland’s argument that “allowable amount” is ambiguous completely ignores the fact that it is followed three words later by a direct reference to the specifically applicable fee schedule in this case — “the participating physicians fee schedule.” The court cannot find this to be ambiguous at all. If fact, it is quite clear which fee schedule applies. Furthermore, this language directly tracks the statutory language in section 627.736(5)(a)1.f., Florida Statutes (2013).
Highland’s argument was rejected by the Third District Court of Appeal previously in Millennium Diagnostic v. Security National, 882 So.2d 1027 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1817b]. In Millennium, the Court held that the appropriate fee schedule is the participating fee schedule, rather than the limiting charge. Id. at 1030. Furthermore, the “user’s manual” published by the Centers for Medicate & Medicate Services2 (“CMS”) describes the limiting charge as follows: “LIMITING CHARGE equals 115 percent of the nonparticipating fee schedule amount and is the maximum the nonparticipant may charge a beneficiary on an unassigned claim. The nonparticipating fee schedule amount is equal to 95 percent of the Medicare Physician Fee Schedule.” (emphasis added). Thus it is clear from both Millennium as well as the fee schedule user’s manual that the participating physician’s fee schedule is the appropriate schedule Progressive should have utilized, rather than the limiting charge, as argued by Highland. Therefore, the court finds that Progressive correctly applied the participating physicians fee schedule limitation in this case.
WHEREFORE it is ORDERED AND ADJUDGED that Plaintiff, MRI ASSOCIATES OF LAKELAND LLC D/B/A HIGHLAND MRI A/A/O EDDIE CROCKETT, take nothing by this action and that Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, go hence without day.
The court reserves jurisdiction to determine any appropriately filed motions for attorney’s fees and costs.
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1The 2018 version of section 627.736(5)(a)5 reads largely the same, only omitting “Effective July 1, 2012.”
2The “user’s manual” as colloquially referred to by this court is a government publication also known as the “MLN BOOKLET.” This manual is a reference guide that explains how providers can obtain Medicare payment information using the online, searchable Medicare Physician Fee Schedule (MPFS) website.
