8 Fla. L. Weekly Supp. 361a
Insurance — Personal injury protection — Medical payments — Plaintiff, which referred and scheduled appointment for insured at MRI facility that actually performed MRI services, is not “physician, hospital, clinic, or other person or institution lawfully rendering treatment” to insured that would qualify it as a healthcare provider entitled to payment of PIP or MPC benefits under section 627.736 — Plaintiff’s activities in referring patients to MRI service and billing insurer more than 400% more than actual charge by service provider constitute clear violation of patient brokering statute and underlying public policy prohibiting patient brokering and split-fee arrangements such as that between plaintiff and MRI provider — Plaintiff not entitled to payment of PIP or MPC benefits under insured’s policy under section 627.736 because such payment would be contrary to public policy of state — Summary judgment granted in favor of insurer and jurisdiction retained to consider insurer’s counterclaim for recovery of monies previously paid to plaintiff
MEDICAL MANAGEMENT GROUP OF ORLANDO, INC. (Ana Marie Ginel, Patient), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Counterclaim Plaintiff, vs. MEDICAL MANAGEMENT GROUP OF ORLANDO, INC., Counterclaim Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. CIO-00-6161. March 12, 2001. Belvin Perry, Jr., Judge. Counsel: Bruce Schiller, Garfinkel, Palmer & Reifler, Ft. Lauderdale. Michael Manthei, Broad and Cassel, Ft. Lauderdale. Robert A. Kingsford, Kingsford & Rock, P.A., Maitland.
FINAL SUMMARY JUDGMENT IN FAVOR OF STATE FARM
THIS MATTER having come before the Court for hearing on February 16, 2001, on Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s Motion for Final Summary Judgment dated January 24, 2001, and the Court havingreviewed the file including all record evidence presented, both parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises
IT is hereby ORDERED and ADJUDGED as follows:
NATURE OF CASE
1. Plaintiff, MEDICAL MANAGEMENT GROUP OF ORLANDO, INC. (“MMGO”), brought this action seeking recovery of personal injury protection (“PIP”) and medical payment (“MPC”) benefits under Section 627.736, Florida Statutes, and a declaration of entitlement to recover said benefits as a result of a magnetic resonance image (“MRI”) scan rendered to ANA MARIE GINEL, the insured under an automobile insurance policy issued by Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”).
2. STATE FARM sought a summary judgment after asserting that MMGO was not entitled to payment of any PIP benefits because the undisputed record evidence established that MMGO did not provide any “necessary medical [or] x-ray services” to its insured and that MMGO was not a “physician, hospital, clinic or other person or institution lawfully rendering treatment” to its insured. See Section 627.736(1)(a) and (5). Rather, STATE FARM asserted that MMGO is merely a patient broker whose activities and charges are not reimbursable nor lawful underSection 627.736 and Section 817.505, Florida Statutes.
3. MMGO sought its own Motion for Summary Judgment under certificate of service date of January 26, 2001, on STATE FARM’s Amended Counterclaim in which STATE FARM sought a declaration that benefits were not due or payable to MMGO and a recovery of monies previously paid MMGO for similar bills.
4. The Court agrees with the position presented by STATE FARM and grants its Motion for the reasons outlined below but reserves jurisdiction to consider further arguments on STATE FARM’s entitlement to recover previously paid benefits pursuant to its Counterclaim.FINDINGS OF FACT
5. The material facts on STATE FARM’s Motion for Summary Judgment on Plaintiff’s claim of entitlement to No-Fault and MPC benefits are indeed undisputed and established by the pleadings and record evidence.
6. STATE FARM’s insured, ANA MARIE GINEL, was involved in a motor vehicle collision on August 21, 1998. At that time, she had in force and effect an automobile insurance policy with STATE FARM that provided PIP and MPC benefits in accordance with the requirements of Section 627.736, Florida Statutes.
7. As a result of injuries received in said accident, MS. GINEL was treated by a neurosurgeon, Julian Bailes, who recommended an MRI scan on MS. GINEL’s lumbar spine. MS. GINEL’s MRI was scheduled by Dr. Bailes’ offices through MMGO to occur at Premier Advanced Imaging (“PREMIER”), an actual, freestanding MRI facility.
8. On January 8, 1999 PREMIER performed the lumbar MRI scan on MS. GINEL at PREMIER’s facility with PREMIER’s technicians and on PREMIER’s MRI equipment. A radiologist not employed, retained or chosen by MMGO interpreted MS. GINEL’s MRI scan at PREMIER’s request who prepared a report setting forth his findings and impressions of the scan.
9. Two different copies of the report were prepared, one of which had PREMIER’s letterhead at the top whichwent to Dr. Bailes’ office while another report,which was blank without letterhead, was provided to STATE FARM and stamped by MMGO “For Billing Purposes Only.” The MRI report provided to STATE FARM by MMGO did not identify where the scan was actually performed.
10. MMGO submitted a standard health insurance claim form (“HCFA”) to STATE FARM seeking payment of $1,400.00 from MS. GINEL’s PIP and MPC benefits for the MRI provided by PREMIER.
11. On the HCFA submitted to STATE FARM, MMGO represented itself to be the supplier of the MRI services for which it sought payment when the listed address in Box 33 was actually a Mail Boxes, Etc. drop box. MMGO left blank the portion of the form (Box 32) that requested the name and address of the facility where the services were rendered if different than the supplier (which MMGO had indicated was itself).
12. The Court finds that the manner in which the HCFA form was completed by MMGO in addition to the submission of the MRI report in blank to STATE FARM was patently deceptive.
13. Pursuant to a contract entered into between MMGO and PREMIER, PREMIER charged MMGO $350 for the MRI scan for MMGO referring MS. GINEL to PREMIER. The charge covered both the technical and professional components of the MRI services provided to MS. GINEL by PREMIER.
14. Fifteen days after receiving the MMGO HCFA form for the subject MRI test, STATE FARM requested via letter to MMGO records which would indicate the cost of the MRI in question. MMGO failed to provide any such records before filing this lawsuit against STATE FARM.
15. MMGO’s actual bill to STATE FARM was more than 400% higher than theactual charge by PREMIER for the services it rendered to MS. GINEL.
16. The Court specifically finds that PREMIER actually performed and rendered the test on MS. GINEL. At most, MMGO participated in the scheduling of the MRI and tendered a bill for the MRI to STATE FARM, thereby making any purported factual dispute of MS. GINEL’s knowledge of MMGO’s involvement immaterial. Although the Court acknowledges MMGO’s argument that it considers itself to be the provider of the service, the Court finds that argument disingenuous and a legal fiction based upon the actual undisputed facts concerning the performance of the scan itself.
17. The Court finds that MMGO did not provide any treatment, medical or x-ray service to STATE FARM’s insured, MS. GINEL, in this case. It simply acted as a middle man which may be of some benefit to the referring doctor’s office but of no benefit to MS. GINEL. Certainly no medical benefit contemplated as compensable under 627.736(1)(a) and State Farm’s insurance policy was provided by MMGO.
18. Accordingly, the Court, based upon these findings of facts arrives at the following conclusions of law set forth below. The Court hereby adopts the following conclusions of law to the extent they encompass findings of fact.
CONCLUSIONS OF LAW
19. The Court hereby adopts the foregoing findings of fact to the extent they encompassconclusions of law or mixed findings of fact and conclusions of law.
20. Pursuant to Section 627.736(1)(a), STATE FARM is required to pay from its insured’s PIP benefits, up to $10,000 for “eighty percent of all reasonable expenses for necessary medical, surgical, x-ray, dental and rehabilitative services…” provided to theinsured due to injury arising out of the ownership, maintenance or use of a motor vehicle. Pursuant to Section 627.736(5), under appropriate circumstances, STATE FARM may only pay “[a]ny physician, hospital, clinic or other person or institution lawfully rendering treatment” to the injured insured.
21. Based upon the undisputed facts established in the record and as set forthabove, the Court concludes that MMGO is not a “physician, hospital, clinic or other person or institution lawfully rendering treatment” to STATE FARM’s insured. Indeed, MMGO provided no treatment of any kind, and provided no “necessary, medical, surgical, x-ray, dental, and rehabilitative services” or the like that would qualify it as a healthcare provider entitled to payment of PIP or MPC benefits under Section 627.736. In short, MMGO does not provide any treatment or any meaningful service whatsoever to a patient such as STATE FARM’s insured in this case.
22. Section 817.505 provides:
(1) It is unlawful for any person … to:
…
(b) solicit or receive any commissions, bonus, rebate, kick-back, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to a healthcare provider or health care facility…
The Court concludes that this Statute, although criminal in nature, is relevant to a consideration of whether “lawfully” rendered treatment was performed by MMGO so as to make it entitled to benefits under the No-Fault Law. The Court further concludes that MMGO’s activities constitute a clear violation of this statute as well as the public policy which underlies the statute, which prohibits patient brokering and split-fee arrangements like the one that exists in this case between MMGO and PREMIER.
23. MMGO is billing $1400 per scan for the technical and professional components of the MRI services actually provided by PREMIER. Yet PREMIER, who actually provided the MRI services to MS. GINEL, charged only $350 for the scan. The payment sought by MMGO would result in the splitting of the fee for the MRI services between MMGO and PREMIER, with PREMIER receiving $350 and MMGO receiving $1,050 for the MRI services, none of which were actually provided by MMGO. In effect, MMGO is receiving a referral fee of $1,050 per scan for the brokering of this patient to PREMIER. Any such split fee arrangement is specifically prohibited by Section 817.505 and is against the public policy of this State. Consideration of the usual and customary charges in the community for such MRI services by other providers is irrelevant and immaterial given this split-fee arrangement.
24. The Patient Brokering Statute reflects clear legislative intent to prohibit receipt of any kind of payment “directly or indirectly” for mere referral of a patient as well as any split-fee arrangement “in any form whatsoever” whereby someone who refers a patient to a healthcare facility is paid a portion of the fee for the healthcare services provided by that facility, although the referring person provided none of those services. The statute clearly precludes PREMIER from billing STATE FARM $1400 per scan and then kicking back $1050 to MMGO for the referral. That is, in effect, what MMGO seeks to accomplish. The fact that, by lease contract, MMGO moves themoney in a different direction by billing the insurer directly for its “kick-back” or “referral fee” does not make the arrangement lawful. The legislature was clearly concerned about prohibiting the end result of sharing the fee, not the direction of the cash flow. Accordingly, the Court concludes that the split-fee arrangement that exists between MMGO and PREMIER is contrary to the PublicPolicy of this State as reflected in the Patient Brokering Statute.
25. Based on the foregoing, MMGO is not entitled to the payment of PIP orMPC benefits under MS. GINEL’s policy with STATE FARM underSection 627.736, as sought by MMGO in this case, because such a payment would be contrary to the Public Policy of this State. It would be an illogical and unreasonable interpretation of the PIP Statute to find that MMGO is entitled to payment of PIP or MPC benefits hereunder when its activities are not only contrary to PublicPolicy but expressly prohibited by the Patient Brokering Statute.
26. The Court finds persuasive and adopts the rationale of the similar Broward County Court decision of NuWave Diagnostics, Inc. v. State Farm Mutual Automobile Insurance Company, 6 Fla. L. Weekly Supp. 522 (Broward County, May 7, 1999) in arriving at the result herein.
27. Therefore, the Court concludes that the Plaintiff has no cause of action for recovery of PIP or MPC benefits against STATE FARM so that STATE FARM is entitled to final summary judgment in this case. To the extent that the parties sought declaratory relief on that issue, the Court’s declarations are set forth above. By virtue of this ruling, the Court denies MMGO’s Motion for Summary Judgment on STATE FARM’s counterclaim finding that factual and legal issues exist on STATE FARM’s entitlement to recover monies previously paid to MMGO for prior MRI billings.FINAL JUDGMENT
28. This action is before the Court on STATE FARM’s Motion for Final Summary Judgment and based on the evidence of record and the findings and conclusions set forth above, final judgment is hereby entered in favor of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and it is hereby adjudged that Plaintiff, MEDICAL MANAGEMENT GROUP OF ORLANDO, INC., take nothing by this action and thatDefendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, shall go hence without day.
29. The Court reserves jurisdiction to further consider the counterclaim issue of STATE FARM’s recovery of previously paid monies and to consider any motion by STATE FARM to tax fees or costs.
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