The Gables Surgical Center Plaintiff vs. State Farm Mutual Automobile Insurance Company Defendant, COSO17002342, 11-05-2019_Notice of Filing (Fla. Broward Cty. Ct. Nov. 5, 2019) (2024)

`

`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFYthat a true and correct copy of the foregoing was sent via E-
`
`Mail on November 3, 2019 to Michael S. Walsh, Esq., Kubicki Draper,
`
`at mw-
`
`kd@kubickidraper.com.
`
`LANDAU & ASSOCIATES,P.A.
`1619 NW 136" Avenue, Suite 2C
`Sunrise, FL 33323
`Telephone (954) 744-8383
`Facsimile (954) 391-7805
`
`Email: efilings@pip-lawyers.com
`
`By:
`
`/S/ Gregory E. Gudin, Esq.
`GREGORYE. GUDIN,ESQ.
`Florida Bar No. 14347
`
`[1210-00050/10274448/1]
`
`

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`DDE PENDENT IMAGING ELC aa Tamtrh Downs, Phim» GEICO INDEMNITY COMPANY, Defendant County Count 1 Sth Juiced Circurt in and for
`
`27 Fla. L. Weekly Supp. 197b
`
`Online Reference: FLWSUPP 2702DOWN
`
`Insurance -- Personal injury protection -- Coverage — Medical expenses -—- Phrase “allowable amount under the
`applicable schedule of Medicare Part B for 2007," as used in PIP statute, refers only to Medicare's participating
`physicians fee schedule, nut to limiting charge
`
`INDEPENDENTIMAGING, LLC. wa’o Damrah Downs. Plaintiff. v. GEICO INDEMNITY COMPANY, Defendant.
`County Court. [Sth Judicial Circuit in and for Palm Beach County. Case No. 50-2016-SC007009-NNAX-NB-REL
`March 2. 2017. Sandra Bosso-Pardo, Judge. Counsel: Erin Tieso and Michael Walsh, for Defendant.
`
`
`
`THIS CAUSEhaving come before the Court on February 13, 2017 fora hearing on the Defendant's Motion for Final
`Summarn Judgment. and the Court. having reviewed the Motion, the entire Court file, the relevant legal authonities.
`having heard the arguments ofthe parties’ respective counsels, reviewed the entirety ofthe record. and having been
`sufficiently advised in the premises, the Court GRANTS the Defendant's Motion for Final Summary Judgment
`
`
`
`Thelegal issue before the Court is whether the phrase “allowable amount under the applicable schedule of Medicare
`Part B for 2007" as used in Florida Statute Section 627.736(5 (42 2012) refers to Medicare's “Participating Non-
`Participating” Pee Schedule or the “Limiting Charge” amount.
`
`LEGAL ANALYSIS
`
`The phrase “allowable amount under the applicable schedule of Medicare Pan B for 2007" as used in Florida Statute
`Section 627.736(5 (a2) (2012) refers only to Medicare’s “Participating” fee or “Non-Participating” fee schedule as: (1)
`“Limiting Charge” amountts not a fee schedule, (2) the “Linuting Charge” is a surcharge bom. paid by the Medicare
`insured; (3) Legislative history, construction, and intent support the incorporation of the “Participating” fee schedule
`into Florida Statute Section 627, 736( $a) 2)
`
`Medicare specifies that the Limiting Charge amount is not deemed a fee schedule. and therefore cannot be within the
`purview of §5(a)(2) which clearly and unambiguously: calls for reimbursem*nt Pursuant 1lo the *“applicable schedule of
`
`Medicare Part B for 20497," Sve Fla. Stat §627.736(5Way(2). See also diddy
`:
`Co. ti Fla fF. Weekly Supp 242a, 11th Jud. Cir. Case No, 02-4740 SP (05 (Oct 10, oi yholding that the"“limiting
`charge ts a surchargeto the beneficiary and or insured of up to 1S% more than the Medicare approved amount.)
`
`The Limiting Charge was established by Medicare to provide certain protection tur those beneficiaries whoelect to treat
`with non-participating providers who do not accept the assignment of the claim. The beneficiary. not Medicare is
`responsible for the difference between the fee schedule amount and the Limiting Charge See duyunced Duugnos
`esuast. 11 Fla L. Weekly Supp. 242a (holding that the limiting charge is specifically bome bythe patient. not
`Medicare). Medicare's participating fee schedule is expressly premised on the existence of suchan assignment, whereas.
`Medicare's limiting charge is expressly premised on the absence ofsuch an assignment Seeo
`cel Durie
`tte
`festing, 11 Fla. L.Weekly Supp. 242a.
`
`Application of the “Limiting Charge” would erroneously interchange the obligation of the Medicare msured with that of
`the Flonda PIP insured when an assignment ofbenefits exists. While the Medicare Part B statute in its explanation
`clearly identified a Medicare insured as the party who assumes the burden ofthe limiting charge. nowhere in Florida’s
`PIP Statute nor its legislative history retlect any corresponding obligation on the part of the PIP insured to be
`responsible for the linuting charge. To the contrary. the term “limiting charge”ts not found anywhere in the entire PIP
`statute because the statute was enacted to regulate the insurer-provider billing relationship, not the patient-provider
`
`[20-28 Ji F258 48 PM]
`[12 LU-UUUaU/ LUZ / 4440) 1]
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`

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`[1210-00050/10274448/1]
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`

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`DDE PENDENT IMAGING ELC aa Tamtrh Downs, Phim» GEICO INDEMNITY COMPANY, Defendant County Count 1 Sth Juiced Circurt in and for
`
`billing relationship.
`
`Here. it ts worth noting that the term “limiting charge” 1s nott mentioned 4anyWhere|in the Pip statute and thus §(§)(a)2
`
`should he “construed as excluding” same. See also,
`Ze
`‘
`.
`zs IS So. A TTT2.
`1117 (Fla. 3d DCA 2009) [34 Fla. 1. Weekly DU7S4a] (stating that different statutory provisions should be construed
`together to hannonize. give effect to the legislature’s intent. and avoid rendering one of two provisions meaningless. )
`
`An interpretation of §(5)(a)2 finding that the “participating physicians fee schedule” is applicable is tn harmonywith the
`PIPstatute:
`
`1) §(5)(a)2 specificallystates “for the purposes of subparagraph 1...” When looking at “subparagraph
`1° which precedes §(5Ka)2 it vern clearlystates:
`
`1} The insurer may limit reimbursem*nt to 80 percent of the following schedule of maximumcharges:
`
`a, For emergencytransport and treatment by providers licensed under chapter 401, 200) percent of
`Medicare.
`
`b. For emergencyservices and care provided by a hospital licensed under chapter 395, 75 percent ofthe
`hospital's usual and customary charges.
`
`c. For emergencyservices and care as defined by s. 395,002 provided in afacility heensed under chapter
`395 rendered bya physician or dentist. and related hospital inpatient services rendered bya physician or
`dentist, the usual and customarycharges in the community.
`
`d. For hospital inpatient services. other than emergeney services and care, 200 percent of the Medicare Pan
`A prospective pasiment applicable to the specific hospital providing the inpatient services,
`
`¢. For hospital outpatient services, other than emergency services and care, 200 percent. of the Medicare
`Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
`
`t. For all other medical services. supplies. and care. 200 percent ofthe allowable amount under.
`
`(1) The participating physicians fee schedule of Medicare Part B. except as provided in sub-sub-
`subparagraphs (I) and (II).
`
`(Il) Medicare Part B. in the case ofservices, supplies. and care provided by ambulatory surgical centers and
`clinteal laboratories
`
`CHT) The Durable Medical Equipment Prosthetics Orthotics and Supplies fee schedule of Medicare Part B,
`in the case of durable medical equipment,
`
`However, if such services supplies. or care is not reimbursable under Medicare Part B. as provided in this
`sub-subparagraph. the insurer maylimit reimbursem*nt to 80 percent of the maximumreimbursable
`allowance under 4 orkers’ compensation, as determined under s. 440.13 and niles adopted thereunder which
`are in effect at the time such services, supplies, or care is provided. Services, supplies. of care that is not
`reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
`
`The charges submitted by the Plaintiffin this case directly fall under 85 )(aX 1 XP) which clearly states “the participating
`physictans fee schedule of Medicare Pan B. ..” To the contrary. the term “limiting” charge is not only not mentioned
`under &§)(ay(1)(f) but 1s not mentioned anywhere in the entire PIP Statute.
`~
`2)
`
`An interpretation applying the “Limiting Charge” would effectively rewrite the PIP Statute to allowthe
`“maximum allowable amount” which would be in opposition to the Legislative intent to reduce excessive
`
`[20-28 Ji F258 48 PM]
`[12 LU-UUUaU/ LUZ / 4440) 1]
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`

`

`DDE PENDENT IMAGING ELC aa Tamtrh Downs, Phim» GEICO INDEMNITY COMPANY, Defendant County Count 1 Sth Juiced Circurt in and for
`
`charges.
`
`Ifthe Legislative intent was to allowthe “maximumallowable amount” the Legislature would've simply stated so in §
`($\(a)2. In drafting other amendments to the PEP Statute such as §(5 4). the legislature specifically used the term
`“maximum”to desenbe the reimbursem*nt allowance amount permitted under workers’ compensation. Specifically. the
`Legislature used the following language in drafling $(§)(ab
`
`However, if such services, supplies, or care is not reimbursable under Medicare Part B. as provided in this
`sub-subparagraph, the insurer maylimit reimbursem*nt to &0 percent of the maximum reimbursable
`allowance under workers’ Compensation. .
`.
`-
`
`As the Legistature specifically elected to utilize the term “allowable amount” as opposed to “maximum allowable
`amount” or “limiting charge” the most sensible reading of the phrase “allowable amount” is application ofthe
`participating physicians fee schedule
`
`[20-28 Ji F258 48 PM]
`[12 LU-UUUaU/ LUZ / 4440) 1]
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`

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`a F
`
`iling 4 30421987 b-Filed 12/22/2016 11:15:88 AM
`
`CASE NY>50-208 SCON MW. XNAX-NB-
`RH
`
`IN THE COUNTY COURT QF THE USlit
`WADICTAL CIRCUIP IN AND FOR) PALM
`BEACH COUNTY, FLORIDA
`
`INDEPENDENT IMAGING, LEC
`ALACO Danmtah Downs
`
`a
`Plaintiff.
`~
`v
`cS
`GEICOINDEMNITYCOMPANY,
`
`
`COMES NOW Defendant, Geren moe ry (hereinatter "GEICO", by and
`through its undersigned counsel, and pursuan hy Rule afCovil Procedure 1.510), hereby
`
`Defendant
`
`DEFENDANT'S MOTION FOR FINAL SU‘
`
`
`
`‘ JUDGMENT
`
`moves Us Honorable Court for entry ofeag
`
`Ord
`
`Granting Summary Judument in favor of the
`
`Defendant as there exists no aS to any matertal fact and that the moving purty ts
`
`entitled to Summary Judigsnengas a miter of how.
`
`fn support of the forezony Defendant states
`
`as follows:
`
`: UNDISPUTED MATERIAL FACTS
`
`
` .
`perewtes MAGING, LLC, against GLICO for personal inyury protection ('PIP’) benetit*
`
`all
`
`eve-stvied matter
`
`as
`
`an
`
`oacuen
`
`tor
`
`damages
`
`filed
`
`by Plaintitt.
`
`relating Wy diagnostic imaging services rendered to Emeste Hora subsequent to a moter vehicle
`
`accident that occurred on of about September 4, 2015
`
`FILED PALM BEACH COUNTY, FL, SHARON R BOCK. CLERK, 12/22/2016 1115 58 AM
`
`Lreaurvuusyy tue eros 1]
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`

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`[1210-00050/10274448/1]
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`

`

`a F
`
`iling 4 30421987 b-Filed 12/22/2016 11:15:88 AM
`
`CASE NY>50-208 SCON MW. XNAX-NB-
`RH
`
`IN THE COUNTY COURT QF THE USlit
`WADICTAL CIRCUIP IN AND FOR) PALM
`BEACH COUNTY, FLORIDA
`
`INDEPENDENT IMAGING, LEC
`ALACO Danmtah Downs
`
`a
`Plaintiff.
`~
`v
`cS
`GEICOINDEMNITYCOMPANY,
`
`
`COMES NOW Defendant, Geren moe ry (hereinatter "GEICO", by and
`through its undersigned counsel, and pursuan hy Rule afCovil Procedure 1.510), hereby
`
`Defendant
`
`DEFENDANT'S MOTION FOR FINAL SU‘
`
`
`
`‘ JUDGMENT
`
`moves Us Honorable Court for entry ofeag
`
`Ord
`
`Granting Summary Judument in favor of the
`
`Defendant as there exists no aS to any matertal fact and that the moving purty ts
`
`entitled to Summary Judigsnengas a miter of how.
`
`fn support of the forezony Defendant states
`
`as follows:
`
`: UNDISPUTED MATERIAL FACTS
`
`
` .
`perewtes MAGING, LLC, against GLICO for personal inyury protection ('PIP’) benetit*
`
`all
`
`eve-stvied matter
`
`as
`
`an
`
`oacuen
`
`tor
`
`damages
`
`filed
`
`by Plaintitt.
`
`relating Wy diagnostic imaging services rendered to Emeste Hora subsequent to a moter vehicle
`
`accident that occurred on of about September 4, 2015
`
`FILED PALM BEACH COUNTY, FL, SHARON R BOCK. CLERK, 12/22/2016 1115 58 AM
`
`Lreaurvuusyy tue eros 1]
`
`

`

`CASE NO... §0-2016-SCD07009-XXNN-NB- RH
`
`2
`
`Piaintitf asserts standing to pursue this clarm through an asstynment of benefits
`
`executed by Danirah Downs Sec Plauntif?s Complaint at FF 1S and $6, atached hereto as
`
`Exhibit “A”
`
`a
`
`For purposes of this Motion, GFICOagrees that Danirah Downs was eligtble to
`
`reveive PIP benefits under an automobie policy with GEICO, andthat the assipmment of Qenetit*
`
`which Plaintift rebes on is valid and legally sufficeent to conter standing to bring
`oN tReatment on
`Danirah Downs presented at INDEPENDENT IMAGING,
`
`September 16. 2C115, where she received a magnetic resonance imag
`
`isacial minimum 4 views
`
`spine cervical 4oar § views [CPT Code 72050), Radex spine
`
`4.
`
`>
`(72110), and Radex spine thoracie 2 views (7207)
`5
`Also tur purpuses afthis Motion, GE ty that the medica? services at issue
`
`were in fact provided by Plaintiff, and that the pi
`
`medically necessary and related to the
`
`acerdent of September -$, 2018 6,
`
`Plaintiff subiiitted :yeths
`
`sto GEICOtor the aforementioned date ofservice,
`
`and GEICO issued payment tg/Plain
`
`orsame. See Explanation uf Review attached hereto as
`
`Exhibit “1.
`
`schedule ing
`
`with Florida Statute $627 73o(Si(ay2) See exhibit “B"
`
`-O sci PlaintifY at 80" of 200% of the 2D07 “Parmnetpating™ fee
`
`
`da
`Q. recenving payments from GEICO, Plarutfbrought suit seeking additional
`
`paymentyalieging that GLICO breached its contract with Ermeste Horta by tailing tw issue
`
`payment persuant (80% ef MWe of the 2007 “Limiting Charge” amount, which Plarnntt
`
`belteves ss required by Florida Statute §627 7365 Way?)
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`

`

`
`
`CASE NO.
`
`80-2016-SCQO7TINS XXXX-NB- RH
`
`9
`
`Payment for the bills at
`
`issue in this lawsuit
`
`35 governed by Flonda Statute
`
`627, 7364S), which states in pertinent part. as tallows:
`
`(8) CHARGES FOR TREATMENT OF INJCERED PERSONS
`
`(ab A physician, hospital, chine, or other person or insutution lawfully rendenny
`treatment
`to an injured person for a bodily injury covered by personal
`injury
`protection msurance may charge the insurer and impured party only a reasonable
`Amount pursuant to this section for the services und supplies rendered I
`However, such a charge may not exceed tne amount
`the person or in
`customarily charges for like services or supplics.
`{nm detennining aN
`consideration may be given to evidence of usual and custemy
`an
`charge
`for
`3 particular
`service,
`treatment.
`or otherwise
`is
`payments uccepted by the provider tnvelved in the dispute, cougbursaynent revels
`
`in the community and various federal and state medical fee se
`applicable
`to motor vehicle and other insurance coveraves, and othe
`tration relevant to
`the reasonableness of the renmbursem*nt for the servicg.
`tngent, ur supply.
`
`10n
`
`The insurer maylimit reimbursem*n
`t.
`schedule of maximum charges:
`
`»
`
` cent of the following
`a For emergency transport an mh t by providers licensed under
`
`
`facility heensed under
`
`y hospital mpatient services, other than emergeneyservices and care,
`
`he Medicare Part A prospective peyment applicable to the specrtic
`a. c. For hospital outpatient services, other than emergency services and care,
`QO percent of the Medicare Par’ A Ambulatory Payment Classtficaten for the
`specific hospital providing: the outparignt services
`
`chapter 401, 20D percent of Medicarg
`
`re provided by a hospital heensed under
`s usual and customary charves.
`
`b. For emergency servi
`chapter 205, 75 percentof t
`
`S und care us defined hy 5. 305.002 provided tna
`«. For emergenyy
`395 rendered hy a physician of dentist, and related
`rendered by a physician or dentist,
`the usual and
`©
`scammunity.
`
`f. For all other medical services, supplics, and care, 200 percent of the
`allowable amount under:
`
`(l) The participating physiciiss fee schedule of Mediecuse Part B, cacept
`as provided in sub-sub-subparagraphs (1) and cD
`
`Lreaurvuusyy tue eros 1]
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`

`

`
`
`CASE NO.: 56-2016-SCO07009-XXXX-NB- RH
`
`in the case of services, supphes, und care provided
`CH) Medicare Part B,
`by ambulatory surgical centers and lineal Laboratories.
`
`and
`Prostheties’Orthotics
`Wy he Durable Medical Equipment
`Supplies fee
`schedule of Medicure Part B. un the case of durable medical
`equipment
`
`However, rfsuch services supplies, or care is cat renmbursuble under Medicare Ph B. as
`provided in this sub-subparagruph. the insurer may limit reimbursem*nt to ~—" of
`Ictetm@ined
`the maximum reimbursable allowance under workers’ compensation,
`under s 440.13 and rules adopted thereunder whichare in etTect at the tye
`Rich services,
`supplies, of care is provided Services, supplies, or care thatis not
`rygmbGQgaWle
`under
`Medicare of workers’ compensation is not required to be remabur:
`neAnsurer
`
`Jrtdule or payment
`the applicable [cig
`For purposes of subpacagruph |.
`2.
`
`limitation in cffect on
`limitation under Medicare iv the fee schedule of p
`t
`March lof
`the service year in which the service
`ar care is rendered anit
`
`tor the area in whigh such seraces, supplies, are
`ected, and the applieahle fee
`scan care tendered duriig that
`
`pe made to the fee schedule or
`ss than the allowable amount under
`payment imitaten, except that it may
`B for 2007 for metal
`semives,
`the applicable schedule of Medic
`
`rt Wor purpvisce ef this subparagraph.
`the
`supplies, and ware subvect to Medtcan
`
`1 Afaren to
`threueh the emt ed Fooeuary ot
`term “service wear” means the
`
`the following veel
`
`
`
`
`Specifically, Kerypeme for Mainuffs boils is governed by Flonda Statute
`
`Fla. Stat. $627. 7360SFig
`
`1
`
`ips ed)
`
`Sections 627. 736t Say
`
`NU O27 TOS Hay
`
`
`QUESTION PRESENTED
`
`move for determination in this cause ss whether the phrase “allowable amount
`
`‘4
`
`hicable schedule of Medicure Pan Botur 20077 as used in Florida Statute Section
`
`unde
`
`627 ThoSan QE2072) refers to Medicare’ s “Pantoipating Non- Participating” Fee Schedule of
`
`the “Lamuting Charge” amount This question raises an issue of statutory construction that can he
`
`devided asa matter of law See Borden y hasteharcpean ins, Co S21 Set S87 CPLA 206);
`
`Boner vs Oidih, ino. Vo Sudd APS, SCRla ath DCA TANG)
`
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`

`

`CASE NO.: 80-2016-SCO07009. XXXX-NB- RH
`
`SUMMARYJUDGMENT STANDARD
`
`A party is entitled to summury judgment "if the pleadings and summury judgment
`
`evidence on file shawthat there is no genuine issue as to any matenal tuct und that the moving
`
`party is entitled to a jadgment as a mutter oflaw." Fla Ro Civ. Po STG).
`
`Once the moving party demonstrates that there is no genuime issue of matenal feet, the
`burden shifts ta the non-moving purty fo "come forward with either cour
`dee ol
`
`just Ruble inferences from the evidence presented sufficient lo generate a
`
`disputed issue offact.” O'Donnel) vy BellSouth dadver & Publ’g Corp
`
`db materal
`
`906,54, 2d 1264, 1264
`
`(Fla. 4th DCA 2005) (quoting Nawl fadem, Co. af the Sov Coy
`wy. Serer. P78 So 2d aad.
`4s
`-
`.
`ona
`oe
`.
`408% (Fla. 4th DCA 2001): Castro vy Brazean, X73 Sa. 2d
`. ay ta 4th DCA 2004),
`If the non-moving party is unable ti de
`sy: genuine issue of muiterial
`»
`
`fact,
`
`summary judgment ts appropnate. Sec, oe. CQ Rye PouSold at bled, Zuckermuan-Vernun “Participating” fe
`
`a fee sched’
`
`of
`
`it an allowable amount under Medicare. (2) Applicaton of the “TP avating
`
`— Is anconsistent with PIP as it premised tn the absence of an assignment of
`
`hepefit\and (3) Legslabve history, coustrugtion, and intent support the incorporabon of the
`
`“Participating” fee schedule inte Florida Statute Section 627 736(3H snl}
`
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`

`

`CASE NO.: 50-2016-SCOUTOUS-XXAX-NB- RH
`
`MEMORANDUM OF LAW
`
`ILE, NOR IS TTAN
`‘THE “LIMITING CHARGE” AMOUNT IS
`
`
`ALLOWABLE AMOUNT UNDER MEDICARE,
`
`Florida Statute Section 627. 746(05)(uH 2) references the 2007 Medicare Part B schedule tn
`
`providing: guidance tor the payment of medical services falling under the purview of Section
`
`4627,TASHAW LD. dé The 2007 Part B Medicare Schedule Repent provides naa“tee
`
`schedule ts designed to advise physicians
`
`=.
`
`aml suppliers whose payments at@gaked ty the
`
`fee schedule of howmuch Medicare will allow for covered services pat
`
`th physician fee
`
`n Pracotioner Fee
`
`
`
`schedule.” Sev Revised 2007 Medicare Part B Physician and Nonp
`
`.)
`
`here are two types of providers
`
`Schedule Report attached hereto as Exhibit °C."
`
`As noted in the 2007 Part B Medicare Schedui
`
`physiciansandsupplierscarfallunderwwsSe-“participating”and“nan
`participating” whichwalldictatethe xx"rateundertheMedicaretueschedule.Ad 1
`
`which Medicare recognizes, physiciins and sup
`
`{
`
`Purthennere, Medicare provides that
`
`“Participating” providers
`
`rogtired to sign a Medicare Parheipating Agrecment
`
`requunng them to always aggptxlaims assignment
`
`tor all covered services
`
`furnished to
`
`Medieate benefcranes Wapcdicare Enrollment Fact Sheet
`
`the
`te always accept agsigtinent.
`Suppliers attagonas Extubi "Do By agrecine:
`“porccnangeeywiders agree to always accept Medicare allawed amenunts as payment in full
`aovidedto Medicarehenefieianes,andtonetcollect morethanthedeductibleot
`copayment from the benefientry. Ad
`In exchange, pamecipating providers are entitled to OQ: of
`
`tor Physicuins and Other Part B
`
`the fee schedule rate as set forth on the Medicare Part B 2007 Fee Schedule. i
`
`On the other hand, “nen participatag’ providers are these wha only uccept assipmmient
`
`on to wase-by-case hasis or not atoall, See Medicare Instructional Form on Plow:
`
`ta lise the
`
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`

`

`CASE NO 50-2016-SCUUTUUG-XXXX-NB- RH
`
`Searchable Medicare Fee Schedule (MPFS) attached hereto as Exhibit “E” Non-Parheipating
`
`providers are entitled to Medicare reimbursem*nt depending on whether the clan ts subiraitted
`
`vn ag “assigned” or “unassigned” basis. Ad Assigned clacms are those submitted by the provider
`
`on behalf of the beneficiary, which results in issuance of payment dicectly to the provider.
`
`fd.
`
`Non-parteipating prividers submutting claims on an assigned asis arc entitled te reimbdwement
`
`at 94%ofthe fee schedule rate as set forth on the Medseare Part B 207 Fee Schg,
`
`id
`
`Unassigned claims ure submitted by non-partiipating providers Cy acceptuny
`
`assignment of the clam 47
`
`In those instances, Medicare issues
`
`Baymgnt directly to the
`
`beneficiary, who will ultimately be responsible for
`
`the pry
`
`ys bill,
`
`Charge” as
`
`the maxamum amount
`
`
`
`
`fd? By definition.
`
`
`services toon Medicare bereficiar
`
`amount
`
`fd
`
`e ulmest impertance to note thatthe Damting Charge amount, which is
`
`fthan the non-participating tee schedule amenint, 1s specitically bom by the
`
`adimutte:
`
` patrent,
`Medicare, In other words. the Luniting Charge is a surcharge ur penalty bome by the
`
`Medicare henefictury who chose to use Ibe sererce: of a non-participoong provider who submits
`
`the claim on an unassigned basis Mediate will rermburse the pon-parkeipating amount, with
`
`the rest, including the Linunng Charge. bemp paid bythe beneficiary the exaraple below, used
`a +
`ne,
`See asc Pahibie
`
`ct
`
`Lreaurvuusyy tue eros 1]
`
`

`

`CASE NO 44h16-SCGUTI0O-XXXA-NB- REL
`
`by Medicare in ats Medicare B Connection Newsletter Cattached hereto as
`
`texhibit “F"),
`
`ss
`
`instructive un this issue:
`
`“Non-participating, nod-assigned EPs are paid YS percent of the fee schedule
`amount. For cxumple, if the Medicare Physician Fee Schedule amount is $100 and
`the beneficianes Part B deductible has heen met, Medicare would pay the
`beneficiary $76 ($95 « 80 percent = $76) and the non-participating physician may
`
`collect, SHOX.16 E895 x TIS percent
`- S1U8.1875)
`an
`total
`for
`the servic
`Therefore, the beneficiary would pay $32 92 (SU08.16 -
`$75 24 = 32.92) out odlllyy
`
`or her pocket tor the service.
`
`Yy
`Sev Exhibit “PF.”
`Evidently,
`the aforementioned framework provided by Megicare SPecrfies that
`
`the
`
`Timating Charge amount
`
`is sot deemed a fee schedule. and
`
`are cannot be within the
`
`or
`
`nbursem*nt pursuant to the
`
`Mb Star, $607 TIS ae See adse
`
`
`
`ino ve Adlets, my
`
`
`
`Advanced Diaynostic Testine,
`
`VW) bla L. Weekly Supp 2424, 11th
`
`Jud Cir. Case No 42-4740 SP (0533
`
`Wasthelding thar the “lumiting charge ts a
`
`surcharge to the beneficiary and’:
`
`amount.”")
`
`|
`
`As noted above,
`
`there RMvanly onc tec schedule used by Medicare when calcusating
`
`tuimbursem*nts ta
`
`prov
`
`kfers. Ser bahibit “0. Depemding on the status of the provider as
`
`Partieipstingage NoMparticopating, and whether the vlaim os submitted on ao assumed ar nen
`ssn fe amounts provided by said unique fee schedule will be adjusted to calculate
`the apprepaate reimbursem*nt (1c. 100% ofthe schedule for participation providers ar YS". ct
`
`the schedule fot nen-particrpating providers. }
`
`Furthermore, Medicare provides that the Linnting Charge 1s sot a paymeat allowance, but
`
`simply a cap on what a provider can bill a Modicare beneficiary far covered sercices b vidently,
`
`Lreaurvuusyy tue eros 1]
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`

`

`
`
`CASE NO = 40-2016-SC{INITO00-NNXX-NB- RE
`
`the Limiting Charge was established by Medicare to provide certain preqection for
`
`those
`
`hercticanes who decided to treat with non-participating providers who do nat accept
`
`the
`
`assignment ofthe claim Simply put, no provider is to be reimbursed by Medicare pursuant to dhe
`
`Lamitny Charge anwunt. In fact, as noted in the example above. the beneficiary, not Medieare 1s
`
`responsible for the difference between the fee schedule amount and the Limiting Chatige See
`
`Advanced Diaunostic Testing 11 Fla Weekty Supp) 242a (holding that me arpe
`In specifically home by the patient, not Medicare).
`
`Y F
`
`londa courts are required to interpret ambiggouS¥gpdutes in the most
`
`logical end
`
`sensible manner and cannot utilize an inlerpretityet
`
`» leads te an unreasenable or ridicules
`
`conclusion. See fla Ope uf Ausnerss un RB Invesonent Corp. of Patm Beacer. 747
`
`So.
`
`2d 3748 (Fla
`
`2999)
`
`It would b
`
`nable und incensistent with the PIP Statute to
`
`interpret $¢$Waj2 to mean the
`
`“ht
`
`phage ” The PHPstatute requires ut assignment orcer
`
`LL Pla fo. Weekis Supp
`
`uch an assignment. See tcnced Duignastie Fesme.
`
`2474.
`
`In the present aise, the Plaintitt iin fact operating under an Assignment of Benedits, As
`
`noted presionstyin the maton, other lactors supporting the Defendant's positon incleds:
`
`The Limiting Charge ts nota fee schedule, but simply a cap on whata provider can bill a
`
`Medscare Fereticury for covered services
`
`Lreaurvuusyy tue eros 1]
`
`

`

`CASE NO 40-2016-SCDOTQWO-XNNX-NU- RH
`
`-
`
`The uncreased in charge under the Lamit Charge 1s specifically horne dy the patient, not
`
`Medicare.
`
`In essence, itis a surcharge to the Medicare insured who opts to use services
`
`of a nen-participating provider who subruts the claim on un unassigned basis.
`
`Applying the “limiting charge” would he in oppositian to the PIP statutes antent
`
`te
`
`limiting excessive charges tor MRIs
`
`‘The sigmficance of Medicare Part B's explanation is that "you" or thepat
`
`nud, nat
`
`it
`Medicare. 1s responsible for the “limiting charge” The flaw in Plainttts ey wis that
`attempts to interchange the obligation of the Medicare insured wathther pt the Flanda PIP
`
`insured when an assignment of benefits exists
`fZ While the
`care Part
`Bo starute in its
`
`
`
`the
`
`explanation cleariy wentified a Medicare insured as \ assumes the burden ofthe
`limiting charge. nowhere in blondas PIP) Staity S »ae, histery reflect any
`id To the contrary, the term “limiting y
`naton anvwhere in theentire PEP statute
`correspon,ng obligation on the part of the PI mh:
`vhe responsible for the limating charge
`
`
`
`e
`the insurer-provider bifling relationship, net
`
`
`
`‘CTION, SUPPORT THF
`FEE SCHEDULE INTO
`
`
`
`"F HISTORYINTENT,.
`fhe
`eme Court of Florida has ruled that
`itcs a fundamentis rule of statutory
`S,
`construcwen that
`the Legislative intent as
`the polestar by whieh the Court must be guided if
`
`Flonda Starate 627.734 Shi ts ambiguous State e Webb, U88 Sed 820, 824 Fla PORT)
`
`In 187), the Honda Lepistature enacted the “Florida Motor Vehicle No-bault Lawe” in
`
`Sechons 627,740 through 627 7405, Florida Statutys. See Ch 71-252. Laws of Fla 7h)
`
`Lreaurvuusyy tue eros 1]
`
`

`

`CASE NO... £6-2016-SCOMT009.X ¥ XX-NHB- RH
`
`Since then, Florida bus opersted under what
`
`pe under what
`
`is commonly knows as the “PIP
`
`Statute” pursuant
`
`to Florida Starute 627.746.
`
`Before January f, 2008,
`
`there were na “fee
`
`schedule limitatiuns in the PIP. statute ulthougk same were incerporated with the speciic
`
`purpose of reducing excessive charges including MRIs. Throughout
`
`the history of the PIP
`
`statute there ure several instances in which the Legislature took specific aim at excessive Pharges
`
`including specifically pertaining to MRIs.
`
`Pursuant to Florida Senate Bill SB1OU2eL. the Legislaturea ndings and
`
`basis for the 20G1 amendments to Flonda's PIP Statute as foulews:
`
`ne Flonda Mitr
`
`Sechon 1 "Legislative Findings". The Legislature findy
`necessary and
`Vehicle No-Pault Law
`ots
`contended to deliver
`
`and withour urduc
`apprupnate medical cure quickly and without rega
`
`htigation or other associated costs. The Legslatge
`er finds that this inteat
`insumers by, among other
`has heen trustrated at significant cost and
`
`inappropriateg SQqGuulston of
`treatments
`and
`things.
`fraud, medically
`diagnostre services, inflated charges, Ne practices on the part of a staal!
`
`
`health cure climes, entrepreneurs
`prulamed
`gumber of health care providers and
`
`finds insurance fraud related to
`rt’
`and uttamess. The Legistatur:
`ny forms, including, but not camited v6.
`Personal Injury Protection
`
`Qpic*ms, brokering patients among dovtots,
`Wegal solictaten
`oof aggdtnt
`tawyers and diagmestte
`Qo unnecessary medical
`treatments of accident
`
`victims billed to insurgfs hy CBMies: billing of insurers byclintes ot services not
`rendered.
`the uttentiys
`Overuse of misuse of legitimate dhagnostic tests,
`inflated chargeafor diagnostic tests or procedures armanged through brokers,
`and fling fraudu
`o-tault law tort lawsuits” The ] eguslature further dectares
`
`the probleg®
`addrQssed in the Grand Jury Report and in this Act and matters
`connect
`srewith are matters of great public interest and importance to public
`heal
`fterWand welfare, and that the specitic provisions
`of
`this aet are the
`loadgren(
`Bective reasonable means by which te selve these problems
`
`egislarure,
`
`XNwv
`findings,
`the entirety of the Grand Jury Report
`
`in §.B 1092 Section | adupted und inverporated hy reteretice ats
`
`The Grand Jury recoxnived the rampant and
`
`pervasive abuse of MRE testing and mere specuically,
`
`the charges submitted to insurers for
`
`reimbursem*nt for MIR}s A clear reading of the Legistateve intent in the 2007 Amendments to
`
`Lreaurvuusyy tue eros 1]
`
`

`

`CASE NO...
`
`$f)-2016-SCGU 7000. XXX N-NH- RE
`
`Flonda‘s PIP Statute was specifically created to limit fraudulently inflated prices by MRI
`
`medical providers, not ty udd an increased burden on the insured: patient.
`
`The issue ofintlated medical costs was satsed vet again by the House ot Representarves
`
`in CS-CS/HB 119 which passed the House on March 9, 2012 aad subsequently passed the Senate
`
`onthe same. The Bill noted thaton April 11. 2071 the OIR published “Report on Revie ot the
`2011 Personal Injury Protection Data Call The repeded noted that over the pi
`serPears
`
`the number of drivers in Plonda has remasnedthe stable, the muamber of accyfenthak deci cased.
`
`but that the fequenyy and severity of PIP claims has increased stygmiffcantly, The report also
`
`made other findings melding
`
`
`PIP chumand the average number ofproved+Od
`-
`Phe amounts bled for physical med: NN ubtitation mereased 173 percent trom
`
`-
`
`Florida exceeds the national average for the numb@Q
`
`oe
`
`
`begth care provider charges per
`
`2008