PRIORITY MEDICAL CENTERS, LLC, etc. v. ALLSTATE INSURANCE COMPANY

Third District Court of Appeal
State of Florida

Opinion filed April 28, 2021.
Not final until disposition of timely filed motion for rehearing.

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No. 3D20-291
Lower Tribunal No. 19-8413 CC
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Priority Medical Centers, LLC
(a/a/o Susan Boggiardino),
Appellant,

vs.

Allstate Insurance Company,
Appellee.

An Appeal from the County Court for Miami-Dade County, Christina
Marie DiRaimondo, Judge.

Phillips | Tadros, P.A., and Mac S. Phillips (Fort Lauderdale), for
appellant.

Shutts & Bowen LLP, and Daniel E. Nordby (Tallahassee) and Garrett
A. Tozier (Tampa), for appellee.

Before HENDON, LOBREE and BOKOR, JJ.

HENDON, J.
 Priority Medical Centers, LLC (“Priority Medical”) appeals from a final

summary judgment in favor of Allstate Insurance Company (“Allstate”) in

which the trial court certified the following question as one of great public

importance:

WHETHER “ALLOWABLE AMOUNT UNDER THE
APPLICABLE SCHEDULE OF MEDICARE PART B FOR 2007
FOR MEDICAL SERVICES, SUPPLIES, AND CARE SUBJECT
TO MEDICARE PART B[,]” REFERS TO THE NON-FACILITY
PARTICIPATING PRICE OR THE NON-FACILITY LIMITING
CHARGE.

We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. We answer the

certified question by holding that the proper reimbursement rate for the MRI

procedure at issue is the higher 2007 non-facility limiting charge, not the

lower 2007 non-facility participating price.

Facts

There is no dispute as to the underling facts, to which the parties

stipulated and which the trial court recited in the final judgment:

Specifically, the parties stipulated that Susan Boggiardino was
insured under an automobile insurance policy issued by Allstate
that was in full force and effect when she was injured in a car
accident on or about May 18, 2016. Plaintiff treated Ms.
Boggiardino for her accident-related injuries and, as part of that
treatment, referred her to Stand Up MRI of Fort Lauderdale
(“SUMRIFL”) for magnetic resonance imaging of her lumbar
spine. Both providers (Plaintiff and SUMRIFL) submitted their
bills directly to Allstate under assignments of benefits. Allstate,
having elected the schedule of maximum charges payment
methodology, paid SUMRIFL the sum of $1,246.46. This amount

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 represents two hundred percent of the non-facility limiting charge
under Medicare Part B for CPT 72148 for calendar year 2007.
Thereafter, Allstate exhausted benefits on or about August 9,
2016. After Allstate exhausted benefits, Plaintiff submitted
additional bills for payment. Allstate denied those bills because
benefits were exhausted. Plaintiff, claiming that Allstate should
have paid SUMRIFL the sum of $1,141.92 based on the lower
non-facility participating price as opposed to the higher non-
facility limiting charge, commenced the instant case for
declaratory relief and asserted that if Allstate paid SUMRIFL
pursuant to the lower non-facility price, then additional benefits
($105.54) would have remained to satisfy a portion of Plaintiff’s
bills.

Priority Medical filed an action for declaratory relief to determine its

rights and obligations pursuant to the Florida Motor Vehicle No-Fault Law

(the “No-Fault Law”), sections 627.730 – 627.7405, Florida Statutes (2016),

regarding the meaning of the phrase, “allowable amount under the applicable

schedule of Medicare Part B for 2007 for medical services, supplies, and

care subject to Medicare Part B” as it is used in section 627.736(5)(a)2. In

a lengthy opinion analyzing the relevant statutes, the trial court determined

that Allstate’s reimbursement calculation was correct and entered summary

judgment in Allstate’s favor on Priority Medical’s declaratory action and

certified to this court the question of great public importance noted above.

Standard of review

We review de novo a grant of summary judgment, Volusia Cnty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000), as well as

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issues of statutory interpretation, Hardee Cnty. v. FINR II, Inc., 221 So. 3d

1162, 1165 (Fla. 2017).

Discussion

The Florida Supreme Court has explained that the no-fault statutes are

to be liberally construed in order to implement the legislative purpose of

providing broad PIP coverage for Florida motorists. Progressive Select Ins.

Co. v. Florida Hosp. Med. Ctr., 236 So. 3d 1186, 1187 (Fla. 5th DCA 2018),

aff'd Progressive Select Ins. Co. v. Florida Hosp. Med. Ctr., 260 So. 3d 219

(Fla. 2018); Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388, 395 (Fla. 2013)

(citing Fla. Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So.

3d 329, 341 (Fla. 5th DCA 2010)); Blish v. Atlanta Cas. Co., 736 So. 2d 1151,

1155 (Fla. 1999). In matters of statutory construction, Florida courts have

repeatedly recognized that legislative intent is the guiding polestar. Jimenez

v. State, 246 So. 3d 219, 227 (Fla. 2018); Sch. Bd. of Palm Beach Cnty. v.

Survivors Charter Schs., Inc., 3 So. 3d 1220, 1232 (Fla. 2009). “The plain

meaning of the statute is always the starting point in statutory interpretation.”

GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007). “[I]f the meaning of the

statute is clear then this Court's task goes no further than applying the plain

language of the statute.” Id. “However, if the language is unclear or

ambiguous, then the Court applies rules of statutory construction to discern

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legislative intent.” Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007). Thus,

“examining the history of the legislation is a helpful tool in determining

legislative intent.” Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d

186, 192 (Fla. 2013).

Before 2012, the PIP statute expressly referenced the Medicare Part

B for 2007 “participating physician” fee schedule. In 2012, the Florida

Legislature amended the PIP statute to remove the phrase “participating

physician” from section 627.736(5)(a)2. and replaced it with “applicable

schedule.” The relevant statute now reads:

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.

Section 627.736(5)(a)2., Florida Statutes (2016) (emphasis added). When

the legislature amends a statute by omitting words, the general rule of

construction is to presume that the legislature intended the statute to have a

different meaning from that accorded it before the amendment. Aetna Cas.

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& Sur. Co. v. Buck, 594 So. 2d 280, 283 (Fla. 1992) (citing Capella v. City of

Gainesville, 377 So. 2d 658 (Fla.1979)).

With that in mind, there are two available Medicare Part B Fee

Schedule reimbursement possibilities for the MRI procedure at issue: the

non-facility participating price or the non-facility limiting charge. The record

on appeal indicates that the Centers for Medicare & Medicaid Services

search tool provides the following amounts:

• 200% of the non-facility participating price for CPT code
72148 in 2016 in Broward County is $464.18.

• 200% of the non-facility participating price for CPT 72148
in 2007 in Broward County is $1,140.92.

• 200% of the non-facility limiting charge for CPT 72148 in
2007 in Broward County is $1,246.46.

(Emphasis added).

Allstate’s policy elected to use the schedule of maximum charges or

fee schedules for reimbursement of PIP claims under section

627.736(5)(a)2., referenced above. The Florida PIP statute instructs insurers

that they may limit reimbursement in accord with the terms of the statute, but

that reimbursement may not be less than what is allowable under the 2007

Medicare fee schedule, i.e., the “applicable schedule.” Thus, when an

insurer calculates the reimbursement, it must first compare the amount for

the Medicare fee schedule in effect at the time services were rendered, in

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this case 2016, with the applicable schedule for 2007, and then pay the

higher of the two amounts. For the 2016 medical charges at issue in this

case, Allstate compared the 2016 “non-facility participating price” to both the

2007 “non-facility participating price” and the 2007 “non-facility limiting

charge,” and paid based on the 2007 “non-facility limiting charge” because it

was the highest allowable amount.

On June 14, 2016, Allstate paid $1,246.46 to Priority Medical, which is

200% of the non-facility limiting charge in 2007 for Broward County. Priority

Medical argues that for the MRI procedure at issue, 200 percent of the

allowable amount under the “participating physician” fee schedule of

Medicare Part B is $464.18 for 2016 and $1,140.92 for 2007. Priority

Medical argues that the plain language of the statute required Allstate to

compare the $464.18 with the $1,140.92 and to pay the higher of the two.

Priority Medical relies on Millennium Diagnostic Imaging Center., Inc. v.

Security National Insurance Co., 882 So. 2d 1027, 1029-30 (Fla. 3d DCA

2004), and Advanced Diagnostics Testing v. Allstate Insurance Co., 888 So.

2d 663-64 (Fla. 3d DCA 2004) in which this Court held that the amount of

PIP benefits payable to MRI providers is based on the participating

physicians fee schedule and not on the limiting charge. We note that these

cases relied on the pre-2012 amendment language “participating physician,”

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which the Legislature removed and replaced with “applicable schedule.”

These cases are not applicable to the current PIP/Medicare statutory

reimbursement language at issue here. Under the current version of the

PIP statute, and giving effect to the 2012 legislative amendment, the highest

reimbursement allowable fee schedule of Medicare Part B is the non-facility

limiting charge for 2007, which was the amount on which Allstate was

required to base its reimbursement to Priority Medical for the MRI procedure

at issue.

On de novo review of the record, legislative history, and statutory

language at issue, we conclude that Priority Medical’s conclusion is incorrect

based on the post-2012 amended PIP language. We answer the certified

question by holding that the proper reimbursement rate is the higher 2007

non-facility limiting charge, not the lower 2007 non-facility participating price,

and affirm the final judgment below.

Affirmed.

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