9 Fla. L. Weekly Supp. 858a
Insurance — Personal injury protection — Coverage — Unregistered medical providers — Mobile diagnostic facility is subject to registration requirement of section 456.0375 because it is a clinic within meaning of statute and is not exempted by statutory exclusions — Department of Health’s interpretation of statute as requiring registration of mobile facilities is logical interpretation of statute which cannot be avoided — Because mobile diagnostic facility was not registered as required, it cannot recover on claims against insurer — Summary judgment granted in favor of insurer
DIAGNOSTIC SERVICES OF SOUTH FLORIDA, INC., a/a/o SARODY MILIAN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-06319 SP 05 (06). October 11, 2002. Roger A. Silver, Judge. Counsel: Juan Abreu, for Plaintiff. Hinda Klein and Edward Winitz, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Coral Gables, for Defendants.
ORDER GRANTING DEFENDANTS’ MOTIONFOR FINAL SUMMARY JUDGMENTAND FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on Defendants’ Motion for Final Summary Judgment, and the Court having considered the Motion and the arguments of counsel, and being otherwise fully advised in the premises finds as follows:
1. The facts in this case are undisputed. Sarody Milian (“Insured”) had an automobile insurance policy with State Farm Mutual Automobile Insurance Company (“State Farm”). On or about October 15, 2001, Insured sustained personal injuries in an automobile accident. As a result of the injuries, Insured sought medical treatment at Abdon Medical Services (“Abdon”), located in Miami-Dade County. As part of Insured’s treatment, an Abdon physician directed Insured to undergo a series of diagnostic tests. The diagnostic tests were performed upon Insured, at the Abdon facility, by Estrella M. Carril of Diagnostic Services of South Florida (“DSSF”).
2. DSSF is a mobile diagnostic testing company that is composed of two full-time technicians and a secretary. DSSF operates its business by transporting its own equipment to the health care provider’s office, in order to provide on-site diagnostic services ranging from comparative muscle to range of motion testing. Having conducted said tests at the health care facility, DSSF then takes the raw data and inputs it into a computer located back at DSSF’s home office. DSSF is then able to produce a diagnostic report to the ordering physician.
3. Here, after performing said diagnostic tests, Insured executed an assignment of benefits to DSSF. Then, pursuant to a health insurance claim form, DSSF sought payment from State Farm for the diagnostic services. State Farm denied DSSF’s claim for payment because DSSF was not registered with the Florida Department of Health.
4. On March 20, 2002, DSSF filed this action to compel State Farm to pay for Insured’s medical bills. It remains State Farm’s belief that the newly enacted Fla. Stat. § 456.0375 required DSSF to register with the Department of Health. To this end, the Department of Health has repeatedly declared that mobile medical diagnostic testing companies, like DSSF, should register under the statute. Accordingly, on June 11, 2002, State Farm filed the Motion for Summary Final Judgment on DSSF’s claim.
5. At the time in question, DSSF was not registered with the Department of Health. In the abundance of caution, DSSF has since registered with the department for financial and business reasons. However, in doing so, DSSF in no way concedes to State Farm’s and the department’s interpretation of Fla. Stat. § 456.0375.
6. The parties’ sole legal issue is whether Fla. Stat. § 456.0375 requires DSSF to register with the Department of Health. In short, the statute requires that: (1) the Department of Health create a registration program to register certain clinics; (2) the clinics so register; (3) the clinics appoint a medical director; and (4) the appointed medical director oversee and accept responsibility for specified clinic activities. See § 456.0375, Fla. Stat. (2001).
7. The court finds that DSSF was required to be registered with the Florida Department of Health pursuant to Fla. Stat. § 456.0375. The statute defines “clinic” as follows:
(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.
§ 456.0375(1)(a), Fla. Stat. (2001).
8. It is a basic rule of statutory construction that words must be given their plain and ordinary meaning. See Southeastern Fisheries Ass’n, Inc. v. Dept. of Natural Resources, 453 So. 2d 1351 (Fla. 1984). However, where the legislature defines a statutory term in clear and unambiguous language, the court is not free to theorize as to its meaning or place a different construction upon it. See Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952). Instead, the court must accept the definition of the term and apply it as written. Id. To do otherwise, would render the legislature’s definition superfluous, leading to an impermissible result. See Johnson v. Feder, 485 So. 2d 409, 410 (Fla. 1986) (noting that courts must interpret statutes in a manner which renders their provisions meaningful).
9. Here, the legislature has expressly defined “clinic” under Fla. Stat. § 456.0375(1)(a).Tracking the language of the statute, DSSF is clearly a business that operates in a single structure or facility [Abdon Medical Center] at which health care services [diagnostic tests] are provided to individuals [Insured] and which tenders charges for reimbursement [to State Farm] for such services. The definition and application of “clinic” is clear and unambiguous. Under the statute, DSSF is a “clinic” for purposes of Fla. Stat. § 456.0375(1)(a).
10. Another basic rule of statutory construction is expressio unius est exclusio alterius. Underthis rule, “where one thing is expressed and others are not, the Legislature is presumed to have intended to omit the items not expressed.” City of Miami v. Cosgrove, 516 So. 2d 1125 (Fla. 3d DCA 1987). Here, while the legislature required that clinics register with the Department of Health, it also specifically excluded certain entities from application of the statute. See § 456.0375(b)(1)-(3), Fla. Stat. (2001). The excluded entities include those that are otherwise licensed under chapter 390 (abortion), 394 (mental health), 400 (nursing homes), 463 (optometry), 465 (pharmacy), 466 (dental), 478 (electrolysis), 480 (massage), 483 (optical), as well as group practices, partnerships and corporations that are already licensed in accordance with chapters 457, 462, 463, 466, 467, 484, 486, 490, 491 and 498. Consequently, any entity that qualifies as a “clinic” and is not excluded under the statute, “must register, and must at all times maintain a registration with the Department of Health.” § 456.0375(2)(a), Fla. Stat. (2001).
11. Under this rule, the court finds that, because the legislature did not expressly exclude mobile health care facilities from application of the Fla. Stat. § 456.0375(1)(a), the court must assume that the legislature intended for the statute to apply to DSSF.
12. Finally, statutes must be read in a manner that is consistent with the intent of the legislature. See United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998). Fla. Stat. § 456.0375 was enacted by the legislature pursuant to Ch. 2001-271, Laws of Florida, wherein the legislature stated, in relevant part:
. . . The Legislature further finds that this intent has been frustrated at significant cost and harm to consumers by, among other things, fraud, medically inappropriate over-utilization of treatments and diagnostic services, inflated charges, and other practices on the part of a small number of health care providers and unregulated health care clinics, entrepreneurs, and attorneys. Many of these practices are described in the second interim report of the Fifteenth Statewide Grand Jury entitled “Report on Insurance Fraud Related to Personal Injury Protection.” The Legislature hereby adopts and incorporates in this section by reference as findings the entirety of this Grand Jury report. The Legislature further finds insurance fraud related to personal injury protection takes may forms, including, but not limited to, illegal solicitation of accident victims, brokering patients among doctors, lawyers, and diagnostic facilities, unnecessary medical treatment of accident victims billed to insurers by clinics; billing of insurers by clinics for services not rendered; the intentional overuse or misuse of legitimate diagnostic tests; inflated charges for diagnostic tests or procedures arranged through brokers; and filing fraudulent no-fault law tort lawsuits . . . .
(emphasis added).
13. Based upon this language, it is clear that the legislature was particularly concerned with overcharging, overuse, and misuse of diagnostic services. This concern stemmed not only from the brokering of patients by primary health care providers, but also by the diagnostic facility, itself. Moreover, the legislature made no distinction between diagnostic companies that operate out of their own facility, and those that are mobile.
14. Likewise, the grand jury report that the legislature adopted in Ch. 2001-271, Laws of Florida also addressed concerns over diagnostic testing. The grand jury stated:
. . . Other diagnostic tests come and go in popularity, but what they all have in common is that they are extremely expensive, highlyprofitable, and generally employed to drain the $10,000 coverage as quickly as possible. In fact one nationally syndicated diagnostic company boasts in its literature that it can teach professionals to reach “policy limits in 90 minutes.” The question triggered by such a statement is why medical professionals, ostensibly dedicated to providing the best medical treatment possible for patients, would ever be concerned about reaching the policy limits quickly or otherwise. The enormous profit potential in ordering these tests can only have a corrosive influence on a doctor’s independent medical judgment.
Report on Insurance Fraud Related to Personal Injury Protection, Case No. 95,746 (Second Interim Report of the Fifteenth Statewide Grand Jury).
15. Again, the grand jury was concerned not just with the abuse of insurance coverage by doctors, but also by the diagnostic testing centers themselves. Indeed, primary health care professionals are not the only ones profiting from diagnostic testing. This is especially the case here, where DSSF has accepted the responsibility of directly billing insurance companies, such as State Farm. Accordingly, the court finds that the legislature intended for Fla. Stat. § 456.0375 to apply to mobile diagnostic testing companies.
16. It is unnecessary for the court to conduct any further analysis of this issue. When the language of a statute is plain and its meaning clear, resort to any other rule of statutory construction is unnecessary. See Kimbrell v. Great American Ins. Co., 420 So. 2d 1086, 1088 (Fla. 1982). Nevertheless, even if arguendo, the language were ambiguous, the court finds that DSSF still qualifies as a clinic for the purposes of the statute based upon the Department of Health’s interpretation of the statute.
17. The legislature has charged the Department of Health with the responsibility of enforcing the registration requirements of the statute. See § 456.0375(2)(b), Fla. Stat. (2001). In this regard, the Department of Health has interpreted the statute and likewise found that a medical diagnostic company must register pursuant to Fla. Stat. § 456.0375 because it is established for the particular purpose of providing a health care service to individuals, and it tenders charges for reimbursement of services. The department has also posted a “decision tree” on its website which indicates a similar reading of the statute.
18. The department’s interpretation of Fla. Stat. § 456.0375 is entitled to great deference. Indeed, the Florida appellate courts have found that “an agency is afforded wide discretion in the interpretation of a statute which it administers and such interpretation will not be overturned unless clearly erroneous.” National Federation of Retired Persons v. Dept. of Ins., 553 So. 2d 1289 (Fla. 1st DCA 1989); Bell South Telecommunications, Inc. v. Johnson, 708 So. 2d 594 (Fla. 1998); Grady v. Dept. of Professional Regulation, Board of Cosmetology, 402 So. 2d 438 (Fla. 3d DCA 1981). “The agency’s interpretation need not be the sole possible interpretation or even the most desirable one; it need only be within the range of permissible interpretations.” D.A.B. Constructors, Inv. v. Department of Transportation, 656 So. 2d 940, 944 (Fla. 1st DCA 1995). Here, the Department of Health’s logical interpretation of the statute cannot be avoided. Indeed, this is not an instance where the department’s reading of the statute flies in the face of a plain reading or leads to an absurd result.
19. Having found that DSSF was required to be registered with the Department of Health, and because DSSF was admittedly not so registered, the court further finds that DSSF cannot recover on its claims against State Farm. “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 non-compensable and unenforceable.” § 456.0375(4)(a), Fla. Stat. (2001).
It is therefore, ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is GRANTED. Accordingly, Plaintiff shall take nothing by this action and Defendant shall go hence without day and recover costs from Plaintiff. The issue of attorney’s fees and the amount of costs is reserved for future consideration.
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