9 Fla. L. Weekly Supp. 855a

Insurance — Personal injury protection — Coverage — Unregistered medical providers — Mobile diagnostic facility — Registration requirement of section 456.0375 is inapplicable to mobile diagnostic providers, regardless of the absence of a specific exclusion for mobile providers, because mobile providers fall within class of medical providers not included in already broad definition of “clinic” as a business operating in a single facility or structure — Insurer’s reliance on Department of Health’s interpretation of statute as requiring registration of mobile facilities is unavailing where interpretation is unfounded and in direct conflict with plain meaning of statute — Questions certified: (1) Is a mobile diagnostic health care facility which only conducts diagnostic testing at clinics registered with the Florida Department of Health and at the request and direction of the on staff treating physicians of those facilities required to be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes, and, (2) If the answer to No. (1) above, is “yes,” is an automobile insurance carrier relieved of its obligation to pay for such services if such services were rendered when the mobile diagnostic facility was not so registered? — Summary judgment granted in favor of medical provider

DIAGNOSTIC SERVICES OF SOUTH FLORIDA a/a/o ONDINA COMESANA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-08980 SP 05 (03). October 28, 2002. Caryn C. Schwartz, Judge. Counsel: Juan Andreu, Pastor, Andreu, Montes, P.A., Miami, for Plaintiff. Hinda Klein and Edward N. Winitz, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARYJUDGMENT AND GRANTING PLAINTIFF’S CROSS-MOTIONFOR SUMMARY JUDGMENT AND ENTERING FINAL SUMMARYJUDGMENT FOR PLAINTIFF

THIS CAUSE was before the Court on July 31, 2002, on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment. Both parties appearing through counsel, and the Court having heard argument of counsel, reviewed the pleadings, having granted Defendant’s Motions for Judicial Notice, as well as being otherwise duly advised, the Court finds:

1. The Plaintiff, DIAGNOSTIC SERVICES OF SOUTH FLORIDA (“DSSF”), brought this action seeking recovery of Florida No-Fault Personal Injury Protection (“PIP”) Benefits under Section 627.736, Florida Statutes. Plaintiff seeks to recover payment for certain range of motions and muscle strength testing provided on January 31, 2002 to Ondina Comesana, the insured of State Farm Mutual Automobile Insurance Company (“State Farm”).

2. In response to State Farm’s Motion for Final Summary Judgment, DSSF filed its Response and Cross-Motion for Summary Judgment. Although DSSF’s Motion for Summary Judgment was not timely filed, in order for it to be heard the same day as State Farm’s Motion for Final Summary Judgment, State Farm agreed to waive the time requirement so that both motions could be heard before the Court. Additionally, State Farm agreed to waive its right to contest the necessity of the treatment, as well as the reasonableness of DSSF’s bills.

3. The issue before the Court on both parties’ Motions for Final Summary Judgment is whether DSSF was required to be registered with the Florida Department of Health pursuant to Section 456.0375, Florida Statutes at the time DSSF rendered service to State Farm’s insured. State Farm contends that DSSF was required to be registered with the Department of Health and, if not so registered, DSSF’s charges are unlawful charges and, therefore, are noncompensable and unenforceable. DSSF contends it was not required to be registered and, therefore, State Farm was obligated to pay for the costs of the testing or services pursuant to the policy of insurance with its insured.

Section 456.0375, Florida Statutes, provides:

(1)(a) As used in this section, the term “clinic” means a business operating in a single structure or facility, or in a group of adjacent structures or facilities operating under the same business name or management, at which health care services are provided to individuals and which tender charges for reimbursement for such services.

(b) For purposes of this section, the term “clinic” does not include, and the registration requirements herein do not apply to:

1. Entities licensed or registered by the state pursuant to chapter 390, chapter 394, chapter 395, chapter 397, chapter 400, chapter 463, chapter 465, chapter 466, chapter 478, chapter 480, or chapter 484.

2. Entities exempt from federal taxation under 26 U.S.C. s. 501(c)(3).

3. Sole proprietorships, group practices, partnerships, or corporations that provide health care services by licensed health care practitioners pursuant to chapters 457, 458, 459, 460, 461, 462, 463, 466, 467, 484, 486, 490, 491, or part I, part III, part X, part XIII, or part XIV of chapter 468, or s. 464.012, which are wholly owned by licensed health care practitioners or the licensed health care practitioner and the spouse, parent, or child of a licensed health care practitioner, so long as one of the owners who is a licensed health care practitioner is supervising the services performed therein and is legally responsible for the entity’s compliance with all federal and state laws. However, no health care practitioner may supervise services beyond the scope of the practitioner’s license.

(2)(a) Every clinic, as defined in paragraph (1)(a), must register, and must at all times maintain a valid registration, with the Department of Health. Each clinic location shall be registered separately even though operated under the same business name or management, and each clinic shall appoint a medical director or clinical director.

(b) The department shall adopt rules necessary to implement the registration program, including rules establishing the specific registration procedures, forms, and fees. Registration fees must be reasonably calculated to cover the cost of registration and must be of such amount that the total fees collected do not exceed the cost of administering and enforcing compliance with this section.Registration may be conducted electronically. The registration program must require:

1. The clinic to file the registration form with the department within 60 days after the effective date of this section or prior to the inception of operation. The registration expires automatically 2 years after its date of issuance and must be renewed biennially.

2. The registration form to contain the name, residence and business address, phone number, and license number of the medical director or clinical director for the clinic.

3. The clinic to display the registration certificate in a conspicuous location within the clinic readily visible to all patients.

(3)(a) Each clinic must employ or contract with a physician maintaining a full and unencumbered physician license in accordance with chapter 458, chapter 459, chapter 460, or chapter 461 to serve as the medical director. However, if the clinic is limited to providing health care services pursuant to chapter 457, chapter 484, chapter 486, chapter 490, or chapter 491 or part I, part III, part X, part XIII, or part XIV of chapter 468, the clinic may appoint a health care practitioner licensed under that chapter to serve as a clinical director who is responsible for the clinic’s activities. A health care practitioner may not serve as the clinical director if the services provided at the clinic are beyond the scope of that practitioner’s license.

(b) The medical director or clinical director shall agree in writing to accept legal responsibility for the following activities on behalf of the clinic. The medical director or the clinical director shall:

1. Have signs identifying the medical director or clinical director posted in a conspicuous location within the clinic readily visible to all patients.

2. Ensure that all practitioners providing health care services or supplies to patients maintain a current active and unencumbered Florida license.

3. Review any patient referral contracts or agreements executed by the clinic.

4. Ensure that all health care practitioners at the clinic have active appropriate certification or licensure for the level of care being provided.

5. Serve as the clinic records holder as defined in s. 456.057.

6. Ensure compliance with the recordkeeping, office surgery, and adverse incident reporting requirements of this chapter, the respective practice acts, and rules adopted thereunder.

7. Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful. Upon discovery of an unlawful charge, the medical director shall take immediate corrective action.

(c) Any contract to serve as a medical director or a clinical director entered into or renewed by a physician or a licensed health care practitioner in violation of this section is void as contrary to public policy. This section shall apply to contracts entered into or renewed on or after October 1, 2001.

(d) The department, in consultation with the boards, shall adopt rules specifying limitations on the number of registered clinics and licensees for which a medical director or a clinical director may assume responsibility for purposes of this section. In determining the quality of supervision a medical director or a clinical director can provide, the department shall consider the number of clinic employees, clinic location, and services provided by the clinic.

(4)(a)All charges or reimbursement claims made by or on behalf of a clinic that is required to be registered under this section, but that is not so registered, are unlawful charges, and therefore are noncompensable and unenforceable.

(b) Any person establishing, operating, or managing an unregistered clinic otherwise required to be registered under this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) Any licensed health care practitioner who violates this section is subject to discipline in accordance with this chapter and the respective practice act.

(d) The department shall revoke the registration of any clinic registered under this section for operating in violation of the requirements of this section or the rules adopted by the department.

(e) The department shall investigate allegations of noncompliance with this section and the rules adopted pursuant to this section.

FINDINGS OF FACT

4. Comesana was involved in a motor accident on or about December 8, 2001. At the time, Comesana was covered by a policy of automobile insurance, including personal injury protection (PIP) benefits, issued by State Farm. Said policy was in full force and effect on the date of the accident.

5. On January 31, 2002, DSSF performed range of motion and muscle strength testing on State Farm’s insured at the direction and request of the patient’s treating physician.

6. On January 31, 2002, DSSF and Comesana executed an assignment of benefits, which assigned Comesana’s PIP benefits from insured to DSSF.

7. DSSF submitted its bill to State Farm for the services rendered on January 31, 2002 on HCFA form 1500, showing a total charge of $600.00, of which State Farm would be obligated to pay the sum of $480.00 (80% of 600.00), if same was a covered loss under the insured’s policy.

8. In determining whether such claim of DSSF was a covered loss under the policy of insurance, State Farm considered the newly enacted Florida Statute Section 456.0375. State Farm discovered that DSSF was never registered by the Florida Department of Health by December 1, 2001, and was not so registered at the time DSSF rendered healthcare services to State Farm’s insured or other similar patients.

9. Subsequent to the filing of DSSF’s Complaint, DSSF finally became registered with the Department of Health on June 28, 2002.

10. DSSF concedes that it was not registered with the Department of Health at the time services were rendered to insured, and that at the time of such services, DSSF’s principal place of business was at the home of its president, Estrella Carril. DSSF purchased its equipment and other computer software programs in order to perform such testing. This equipment was transported by DSSF by vehicle to a health care provider’s office to perform comparative muscle testing, grip and pinch test, and range of motion testing. At home, DSSF (Carril) would then input the raw data into a computer program, and DSSF, through Carril, would prepare and print a typed report. DSSF would then furnish the report to a chiropractor who would then allegedly review same and place his signature on the report. Finally, DSSF would furnish the report to the ordering physician.

DSSF has never conducted actual medical services at its business address. The office of DSSF is used solely for preparing reports, billing, collections and maintenance of the company’s records.

11. State Farm’s policy with its insured provides for payment of 80% of the reasonable expenses for necessary medical treatment and testing which is related to a covered automobile accident, where the insurer has been furnished with written notice of the fact of a “covered loss” and the amount of same.

12. State Farm denied payment of DSSF’s bill, because DSSF was unable to furnish information to State Farm verifying that it was registered with the Department of Health and had designated a medical director pursuant to Section 456.0375, Florida Statutes. State Farm did not contest the bill on the basis that it was unreasonable in amount, medically unnecessary, or unrelated to the accident.

ARGUMENTS ON SUMMARY JUDGMENT

13. State Farm’s Motion for Final Summary Judgement argues that DSSF was not registered with the Florida Department of Health as mandated by Section 456.0375, Florida Statutes. State Farm argues that if this statute is properly construed, then this statute renders unlawful DSSF’s charges or reimbursement claims by mobile health care facilities and, therefore, DSSF’s claims are not compensable. Moreover, State Farm argues that Section 627.736(5)(a) mandates that insurers may pay for such charges directly to “…clinic… ‘lawfully’ rendering such treatment…” Since DSSF was not registered at the time it rendered treatment to State Farm’s insured, it was not lawfully rendering such treatment. As a result, neither State Farm nor its insured are legally obligated to pay such charges. Also, State Farm argues that recent legislative changes to the PIP statute arising from concerns about fraud, phony diagnostic tests, or the misuse of legitimate tests, warrant a broad interpretation of the subject statute. State Farm’s conclusion is reinforced by general principles of statutory construction. Notably, State Farm argues that its conclusions are supported by the often cited rule of statutory construction “expressio unius est exclusio alterius,” or the express mention of one thing is the exclusion of another. The Legislature listed thirty (30) exemptions to the registration requirement. State Farm argues that had the Legislature intended to establish other exemptions to include a mobile diagnostic facility such as DSSF, it would have done so clearly and unequivocally. State Farm argues that in response to the Second Interim Report of the Fifteenth Statewide Grand Jury examining the issue of fraud in PIP, it is presumed that the Legislature thoroughly considered and purposely preempted the field of exemptions to the registration requirement as set forth in Section 456.0375, Florida Statutes.

Finally, State Farm argues that for DSSF to contend that it is not a business or clinic providing medical or diagnostic services at a clinic or from its principal’s home, would lead to an absurd result. According to State Farm, to adopt DSSF’s interpretation of the statutes would result in an anomaly whereby any health care provider who transports her/its medical equipment (neurodiagnostic testing equipment, MRI equipment, comparative muscle testing or range of motion equipment) would not have to be registered, while a health care provider which provides such equipment in a building must be registered, even though the same statute was violated in the same manner. Indeed, State Farm argues there is no exception in the statute for a provider who operates out of her home (as here) and places her equipment in a motor vehicle (as here) or in a trailer (such as mobile MRI companies) and travels to the same chiropractors’ offices or rehabilitation center (as here) several times each week to test multiple patients each day (as here). Therefore, Section 456.0375 must be interpreted as applying in all cases which the specific provider, clinic, or business is not exempted.

14. In addition to State Farm’s argument that Section 456.0375 renders DSSF’s charges noncompensable, State Farm opines that Section 627.736(5)(a) mandates that an insurer (State Farm) only pay for treatment “lawfully” rendered. DSSF was not registered and, therefore, any treatment rendered by it was, by definition, not lawful. Section 627.736(5)(a) is set forth as follows:

(5)(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person … may charge only a reasonable amount for the services…rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment…(emphasis added).

Reading this statute in para materia with Section 456.0375, State Farm contends that it is absolutely clear that unless DSSF is registered, State Farm is legally obligated NOT to pay DSSF’S bills. Therefore, State Farm argues it had a reasonable basis to deny DSSF’s claim.

15. Lastly, State Farm argues that following the enactment of Section 456.0375 Florida Statutes, the Florida Department of Health prepared and issued its position that mobile health care providers or providers such as DSSF must be registered. In response to providers’ questions whether they must be registered, the Department of Health concluded that mobile health care facilities are required to register with the Department pursuant to the requirements of the statute. Moreover, since such provider or business was established for the particular purpose of providing health care services, such provider would meet the statute’s definition of a clinic as “… a business operating in a single structure or facility…at which health care services are provided to individuals and which tender charges for reimbursement for such services.” This was expressed by not only Melinda Gray, Regulation Specialist II of the Board of Medicine but also by the Assistant General Counsel for the Florida Department of Health, Lucy Schneider. Ms. Gray’s response to State Farm’s inquiry about DSSF clearly indicates that DSSF, a mobile diagnostic facility, must be registered with the Department of Health.

16. DSSF, on the other hand, argues that it need not be registered with the Florida Department of Health in order to provide diagnostic testing to automobile accident patients. It argues that DSSF did not meet the statute’s definition of a “clinic,” as aforesaid, and, therefore, DSSF was not required to be registered. It argues that the Legislature intended to include all primary care providers; i.e., providers directly capable of soliciting patients and responsible for diagnosing their injuries, creating a treatment regime, and referring them for diagnostic testing. Moreover, DSSF argues it is abundantly clear that the Legislature did not have this same concern for secondary providers such as fully mobile diagnostic testing companies, subcontractual physical therapists (who provide physical therapy consultations to patients of registered facilities and bill for their services separately), independent technicians, and others which do not provide health care services at their own “business operating in a single structure or facility, or in a group of adjacent structures or facilities.”

17. DSSF argues that Florida Statute §456.0375 clearly defines the type of medical provider (“clinic”) subject to its requirements and then provides certain exemptions for specific types of “clinics” and “clinics” wholly owned by licensed health care practitioners and their immediate family. Pursuant to this plain meaning, DSSF asserts it would not be required to register, because it would fall into the class of medical provider not included in the already broad definition of “clinic” provided by the legislature.

18. DSSF, like State Farm, argues the principle of statutory construction “expressio unius est exclusio alterius,” except it is DSSF’s position that the Legislature intentionally excluded providers similar to DSSF. DSSF claims that the Legislature’s intent that DSSF and other similar medical providers be excluded from having to register with the Florida Department of Health, is evidenced by its decision to define “clinic” as aforesaid, rather than defining “clinic” as “all” medical providers who treat automobile accident patients with an intent to bill for said services.

19. Lastly, DSSF argues that the position statements of Florida’s Department of Health attached as exhibits to both parties’ motions, should be disregarded or invalidated because the agency (Department of Health) is attempting to modify the statute or has interpreted it in such a manner which conflicts with the plain meaning of the statute.

20. Notably, Plaintiff concedes that DSSF has since registered with the Department of Health on June 28, 2002 for financial and business reasons, since it argues it is incapable of continuing with repetitive and unjustified denials of its bills. However, it maintains that it is not under a legal obligation to have so registered.

21. Both parties rely upon the arguments set forth in their Motions for Summary Judgment and their arguments at the hearing hereon, as though same were fully incorporated herein.

CONCLUSIONS OF LAW

22. This Court concludes that there are no genuine issues of material fact, and, therefore, DSSF is entitled to Final Summary Judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (case where no factual disputes existed and the dispute was a question of law); Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

23. Section 456.0375, Florida Statutes, is inapplicable to mobile diagnostic providers such as DSSF, which travels from its president’s home (administrative office) to registered clinics in Miami-Dade wherein it provides diagnostic testing to PIP claimants at the request of their treating physician. Although the statute does not include mobile diagnostic facilities as one of the thirty (30) exemptions, the Legislature had the opportunity to create an express exemption but for whatever reason, it failed to do so.

24. “It is a well established principle of Florida law that the plain meaning of statutory language is the paramount consideration of statutory construction.” Prewitt Management Corp. v. Nikolitis, 795 So.2d 1001, 1005 (Fla. 4th DCA 2001) citing Capers v. State of Florida, 678 So.2d 330, 332 (Fla. 1996) and St. Petersburg Bank & Trust Co. vs. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982). Florida Statute §456.0375 clearly defines the type of medical provider (“clinic”) subject to its requirements and then provides certain exemptions for specific types of “clinics” and “clinics” wholly owned by licensed health care practitioners and their immediate family. By applying the plain meaning of the statute, the Plaintiff would not be required to register, because it would fall into the class of medical provider not included in the already broad definition of “clinic” provided by the legislature. Moreover, the principle of statutory construction “expressio unius est exclusio alterius,” which states that the mention of one thing implies the exclusion of another, James v. Department of Corrections, 424 So.2d 826, 827 (Fla. 1st DCA 1982) (“where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned”), would evidently indicate that the Legislature excluded providers similar to the Plaintiff. If the Legislature intended to include these providers, it could have defined “clinics” as any and all medical providers which treat automobile accident patients with an intent to bill for said services. Instead, it chose to provide a definition encompassing the class of medical provider it reasoned should be subject to the registration requirements of Florida Statute §456.0375.

25. State Farm’s argument that the Florida Department of Health has interpreted the statute and concluded that mobile diagnostic providers identical to the DSSF must register is unavailing. Agency rules and interpretations have been disregarded or invalidated by state courts in the past when it has been determined that the agency has attempted to modify the statute or has interpreted same in a manner which conflicts with its plain meaning. See Florida Dept. of Business and Professional Regulation, Division, of Parimutuel Wagering v. Investment Corp. of Palm Beach, 747 So.2d 374 (Fla. 1999) and State Department of Insurance v. Insurance Services Office, 434 So.2d 908, 911-912 (Fla. 1st DCA 1983). “An agency of this state … must follow the interpretations of statutes as interpreted by the courts of this state.” Mikolsky v. Unemployment Appeals Commission, 721 So.2d 738, 740 (Fla. 5th DCA 1998). The agency’s interpretation that all mobile medical diagnostic clinics must register is unfounded and appears to be in direct conflict with the plain meaning of the statute. It is simply an attempt by the agency to group all the providers under the requirements of §456.0375, although the Legislature appears to have no such intent.

26. Therefore, it is ORDERED AND ADJUDGED as follows:

a. This Court GRANTS State Farm’s Motions for Judicial Notice;

b. State Farm’s Motion for Final Summary Judgment is hereby DENIED; and,

c. The Cross-Motion for Summary Judgment filed by Diagnostic Services of South Florida, Inc. a/a/o Ondina Comesana is hereby

GRANTED.CERTIFICATION TO THE THIRD DISTRICTCOURT OF APPEAL

27. The Court notes that there is no controlling precedent, as none have addressed the legal issues presented here and passed on by this court.¹ This Court concludes that a provider rendering these types of diagnostic testing which has its business operating in a single structure or facility at which health care services are provided and which renders charges for reimbursement, must be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes. However, given the widespread practice in this county of individuals running a mobile diagnostic facility, this Court finds and concludes that the matters presented and ruled upon are of great public importance.

28. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.160, this Court hereby certifies that this case involves issues of great importance including, but not limited to, the following:

(1) Is a mobile diagnostic health care facility which only conducts diagnostic testing at clinics registered with the Florida Department of Health and at the request and direction of the on staff treating physicians of those facilities required to be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes, and,

(2) If the answer to No. (1) above, is “yes,” is an automobile insurance carrier relieved of its obligation to pay for such services if such services were rendered when the mobile diagnostic facility was not so registered?

FINAL JUDGMENT

28. Pursuant to the foregoing, Final Judgment is hereby entered in favor of Plaintiff, Diagnostic Services of South Florida, Inc. a/a/o Ondina Comesana in the amount of $480.00 (600.00 X .80), plus interest, for which let execution issue.

29. The Court reserves jurisdiction to consider a motion by Plaintiff to tax attorney’s fees and costs, pursuant to the requirements of Sections 627.736 and 627.428, Florida Statutes, when all appeals are exhausted.

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¹The court was informed by the parties’ counsel that Plaintiff has filed approximately thirty (30) similar actions as the case sub judice, and that both parties have filed similar Motions for Summary Judgment, some of which had been argued before other County Court judges. It is acknowledged that the identical Motion for Summary Judgment was argued in Division 01, resulting in a Final Summary Judgment for State Farm, but at the time hereof there is no written order from that Court.

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