27 Fla. L. Weekly Supp. 316a
Online Reference: FLWSUPP 2703HANSInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Medicare fee schedule in place on March 1, 2014, applies for full 12-month period and is applicable to services rendered in February 2015 — Where PIP policy provides that charge submitted for amount less than allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer properly applied entire amount of charge to 200% of allowable amount under fee schedule and then subjected it to coinsurance provision of policy
ROYAL PALM CHIROPRACTIC & REHAB CENTER, P.A. a/a/o Emily Hansen, Plaintiff(s), v. GEICO GENERAL INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2017 SC 009430 XXXX MB, Civil Division RL. May 8, 2019. Edward Garrison, Judge. Counsel: Ronald Seymour, Law Office of Jeffrey R. Hickman, West Palm Beach, for Defendant.
FINAL JUDGMENT
THIS CAUSE came before this Court April 18, 2019, for Non-jury trial. Based upon the evidence presented and arguments of counsel, the Court finds as follows:
This is a personal injury protection (“PIP”) case wherein Defendant issued a policy of insurance limited to $10,000 in PIP benefits, which covered the assignor, Emily Hansen (the “Insured”). The policy period was from June 24, 2014 through December 27, 2014 and was inclusive of the underlying date of loss of December 24, 2014.
Plaintiff is a healthcare provider who rendered treatment and services to the Insured. The Insured assigned her post-loss PIP benefits to Plaintiff.
Defendant paid $2,351.82 in PIP benefits on behalf of the insured, with $2,147.79 in PIP benefits being paid to Plaintiff.
Thereafter, Plaintiff filed suit against Defendant asserting that Defendant improperly paid CPT Code 97110 for dates of service February 14, 19, 24, 28, of 2014, and that Defendant improperly paid CPT Code 99212 for date of service March 17, 2015.
For CPT Code 97110, Plaintiff’s asserts that Defendant improperly paid this code at the 2014 fee schedule rate when it should have retroactively applied the fee schedule rate in effect on March 1, 2015 to the February 2015 dates of service.
For CPT Code 99212, Plaintiff asserts that Defendant should have paid 100% of the charge rather than applying the 20% coinsurance and then paying 80% of the charge.
Defendant’s position is that CPT 97110 was paid correctly pursuant to the 2014 fee schedule rates and that Defendant correctly paid 99212 by applying the 20% coinsurance and then paying 80% of the charge pursuant to Fla. Stat. §627.736 and the subject Geico insurance policy.The 2014 v. 2015 version of Fla. Stat. §627.736
The Defendant determined the reasonable reimbursement amount by applying 200% of the allowable amount under the 2014 participating physicians fee schedule of Medicare Part B. Plaintiff argues that the reimbursement amount should have been determined by applying 200% of the allowable amount under the 2015 participating physicians fee schedule of Medicare Part B.
Based on the subject policy period beginning on June 27, 2014, Fla. Stat., §627.736 (2014) applies to the policy at issue. De La Fuente v. Fla. Ins. Guar. Ass’n, 202 So. 3d 396, 403 (Fla. 2016) [41 Fla. L. Weekly S473a] (“We observed that it is generally accepted that the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.”).
This Court has been asked to determine which version of §627.736 applies to the services for CPT Code 97110 rendered in February of 2015. The 2014 version of §627.736 provides in pertinent part:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
2. For purposes of subparagraph 1., 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, and the 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 schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
§ 627.736(5)(a)2. (2014) (emphasis added).
The pertinent policy language at issue mirrors the statute 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, and the 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 schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
FLPIP (01-13) Amendment and FEE SCHEDULE ENDORSEMENT M608 (01-13) (emphasis added).
The 2015 version of §627.736 provides in pertinent part:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
2. For purposes of subparagraph 1., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies to services, supplies, or care rendered during that service 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 schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year.
§ 627.736(5)(a)2. (2015) (emphasis added).
The 2015 amendment added the term “service year” and defined it as the period from March 1st through the end of February the following year.
In support of its position, Defendant provided a copy of the House of Representatives Final Bill Analysis to support the 2015 amendment to § 627.736. It provides in part:
The bill amends s. 627.736(5)(a)2., F.S., to define a “service year” for rendered services, supplies, or care. For this purpose, a “service year” is from March 1 through the end of the following February. The period for the applicable Medicare fee schedule is then applied to this same period. This should provide certainty that reimbursement for any medical services, supplies, or care under PIP will be reimbursed based on the applicable Medicare fee schedule in effect on the preceding March 1.
See House Of Representatives Final Bill Analysis dated June 17, 2015; CS/CS/CS/HB 165, Page 5 (Chapter 15-135, Laws of Florida) (Emphasis added).
The House of Representatives Final Bill Analysis cited to and relied on Informational Memorandum OIR-12-06M, Issued on November 6, 2012 by the Florida Office of Insurance Regulation (“FLOIR”) which states that “The Office of Insurance Regulation believes the plain language of Section 627.736(5)(a)(s), Florida Statutes, requires the fee schedule in place on March 1 to apply throughout the following 365 days, or until the following March 1.” This court has taken judicial notice of both the Final Bill Analysis and the FLOIR Informational Memorandum.
It is clear from the House of Representatives Final Bill Analysis that the legislature intended for the fee schedule in place on March 1 to apply throughout the following 365 days or until March 1st of the following year. The Legislature, with the 2015 amendment, was merely clarifying the 2013 Florida No-Fault Law related to subparagraph 627.736(5)(a)2. This conclusion is supported by the holding of Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat’l Ins. Co., 882 So. 2d 1027 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1817b] as an example of the Florida No-Fault Law’s rich history of passing subsequent amendments to clarify earlier changes to the statute. See State Farm Mut. Auto. Ins. Co. v. Bergman, 387 So. 2d 494, 495 (Fla. 5th DCA 1980) citing Williams v. Hartford Cas. & Indem. Co., 382 So.2d 1216 (Fla. 1980) (“It is quite reasonable and proper for this court to interpret the statute as it existed before the clarifying legislation. . .in a way to harmonize that prior statute with the current statute. This gives the credence to the Legislature which it is due, as well as preventing a wrong which would occur if we failed to interpret the statute in a just fashion.”).
So logically, the fee schedule in place on March 1, 2014 should apply for a full 12-month calendar year, which would make it applicable to the services at issue in February of 2015, and, accordingly, judgment must be entered for Defendant.The Billed Amount Issue
The second issue the Court has been asked to decide is whether an insured is subject to the coinsurance provision of Florida Statute 627.736(1)(a) when the charge submitted by the insured’s provider is for an amount less than the amount allowed by the schedule of maximum charges as described in subparagraph 627.736(5)(a)5. Subparagraph 627.736(5)(a)5. reads:
5. …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.
And the corresponding language in the subject policy reads:
A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.
See GEICO’ s Florida Policy Amendment FLPIP (01-13), Page 3 of 11.
Plaintiff contends that the policy substituted the word “may” to “shall” and that plain reading of the policy mandates that when a medical provider bills an amount less than the “amount allowed above”, Geico “shall” reimburse the medical provider at the “amount of the charge submitted” without taking any further reductions or copayment.
After reviewing both the language of the statute and the policy, the Defendant’s change of the statutory word “may” to “shall” in the policy represents nothing more than the insurer opting and letting their insured know that there is some certainty to this particular means by which they are going to adjust these bills. It does not vitiate the application of the coinsurance.
200% of the allowable amount under the participating physicians fee schedule of Medicare Part B is the number against which the bill needs to be applied. However, neither the policy nor the statute stops there.
This Court previously ruled on this issue in Columna Inc., (Ashley Exantus) v. Geico, 502015SC011754XXXXMB, October 1st, 2018, whereby this Court entered an Order Granting Geico’s Motion for Summary Judgement as to the Billed Amount Issue.
The statutory language is clear and the policy language directs the insurer to apply the lesser billed amount to 200% of the allowable amount and then subject it to the coinsurance provision. The insurer did so correctly in this case. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff take nothing from this action from Defendant, who shall go hence without day. The Court reserves jurisdiction to determine Defendant’s entitlement to and amount of attorney’s fees and costs.
