SAFECO INSURANCE COMPANY OF ILLINOIS v. MD NOW MEDICAL CENTERS, INC. d/b/a MD NOW PATIENT: SHELLEY HOLMSTOCK

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

SAFECO INSURANCE COMPANY OF ILLINOIS,
Appellant,

v.

MD NOW MEDICAL CENTERS, INC. d/b/a MD NOW PATIENT a/a/o
Shelley Holmstock,
Appellee.

No. 4D22-846

______________________________

LM GENERAL INSURANCE COMPANY,
Appellant,

v.

MD NOW MEDICAL CENTERS, INC. d/b/a MD NOW PATIENT a/a/o
Lisa Lugo,
Appellee.

No. 4D22-847

______________________________

LIBERTY MUTUAL INSURANCE COMPANY,
Appellant,

v.

MD NOW MEDICAL CENTERS, INC. d/b/a MD NOW PATIENT a/a/o
Jack Nguyen,
Appellee.

No. 4D22-1486

[August 2, 2023]

Consolidated appeals from the County Court for the Fifteenth Judicial
Circuit, Palm Beach County; Reginald R. Corlew, Judge; L.T. Case Nos.
50-2018-SC-022038-XXXX-SBRD, 50-2019-SC-005335-XXXX-SBRD,
and 50-2019-SC-011362-XXXX-SBRD.

Jeffrey R. Geldens of Roig Lawyers, Miami, and Abbi Freifeld Carr and
Veresa Jones Adams of Roig Lawyers, Deerfield Beach, for appellants.

Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellees.

KLINGENSMITH, C.J.

In this consolidated appeal from the county court, Safeco Insurance
Company of Illinois, LM General Insurance Company, and Liberty Mutual
Insurance Company (collectively “Insurers”) request reversal of the trial
court’s order (1) granting summary disposition in favor of MD Now and (2)
requiring Insurers to reimburse MD Now for billed urgent care center
facility fees under Code S9088. We find that MD Now’s use of that code
when billing for its services did not prevent Insurers from reimbursing
those charges under their insurance policies, and we affirm.

In each of the three cases presented, the insureds were injured in
automobile accidents and later received treatment at MD Now urgent care
centers. Each of the insureds assigned their PIP benefits to MD Now, and
MD Now submitted medical bills to the Insurers on the insureds’ behalf.
Insurers paid for all medical expenses except the charges for the urgent
care facility fee under Code S9088 that MD Now uses to calculate billing
charges for services provided in an urgent care center. Insurers denied
payment under Code S9088 claiming it was not a covered expense. As a
result, MD Now sued the Insurers pursuant to Florida Small Claims Rule
7.135 for breach of contract by their refusal to reimburse for those
charges.

Each insurer articulated the same arguments and defenses in all three
cases, claiming they properly paid the insurance policy benefits as “subject
to the terms, conditions, and limitations of [the] policy and Florida
Statutes.” Additionally, they averred that in accord with section
627.736(5)(a)(1)(f), Florida Statutes (2020), they were not required to
reimburse any charge under Code S9088 as this “procedure code is not
reimbursable under [Florida’s PIP statute] because it is not reimbursable
either under the Medicare or [Florida’s Workers’ Compensation] Fee
Schedules.” 1

1 The parties do not dispute that Code S9088 is not reimbursable under Medicare.

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 Based on those arguments, Insurers moved for summary judgment
supported by an affidavit of an expert—a certified coder—who testified that
(1) neither Medicare nor Workers’ Compensation have a set fee for Code
S9088 but instead use the same rate of compensation for urgent care
centers as it does for physicians’ offices; and (2) Workers’ Compensation
reimburses urgent care centers using the non-facility Maximum
Reimbursable Amount (“MRA”).

In response, MD Now moved for final summary disposition, arguing
that contrary to the Insurers’ contentions, billings under Code S9088 are
reimbursable under Workers’ Compensation and the Florida Workers’
Compensation Health Care Provider Reimbursement Manual (“the
Manual”), a reference guide for MRA reimbursement. MD Now asserted
that rather than entirely deny reimbursement for codes like Code S9088
that do not have a set MRA, Insurers are instead required to have an
established methodology for determining the amount of that
reimbursement.

In support of its motion, MD Now submitted the affidavit of two experts.
The first, a billing expert, testified Workers’ Compensation insurers had
consistently provided reimbursement under Code S9088 in the three
years’ timeframe before this suit was filed. The second, an expert in
Medicare and Workers’ Compensation health care billing and coding,
explained that Workers’ Compensation insurance carriers have routinely
used Code S9088 for services provided in urgent care centers since the
code became effective in 2002. That expert also confirmed Code S9088
has no established MRA and, thus, is not specifically listed in the Manual.
But pointing to the page in the Manual that requires insurers to have a
methodology for reimbursing codes without established MRAs, the expert
explained insurance carriers must have a reimbursement amount for Code
S9088 even though it does not have an MRA.

After a hearing on these competing motions, the trial court granted MD
Now’s motions for summary disposition and denied Insurers’ motions for
summary judgment, requiring Insurers to reimburse MD Now for fees
charged under Code S9088. This appeal followed.

“[T]he standard of review for an order granting summary disposition is
the same standard we use to review an order granting summary judgment:
de novo.” Save A Lot Car Rental, Inc. v. Tri J. Co. Towing & Recovery, Inc.,
325 So. 3d 285, 286–87 (Fla. 2d DCA 2021). “Florida Small Claims Rule
7.135 directs that a trial court must enter a summary disposition at a
pretrial conference or subsequent hearing if it determines that there is no
triable issue.” Id. at 286.

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 “[T]he PIP statute sets forth a basic coverage mandate: every PIP insurer
is required to—that is, the insurer ‘shall’—reimburse eighty percent of
reasonable expenses for medically necessary services.” Geico Gen. Ins. Co.
v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 155 (Fla. 2013); see also §
627.736(1)(a), Fla. Stat. (2020). The governing PIP statute requires an
insurer to provide eighty percent of all reasonable expenses for medically
necessary services. § 627.736(1)(a), Fla. Stat. (2020). Section
627.736(5)(a)1.f. allows an insurer to limit reimbursement to eighty
percent of the following schedule of maximum charges:

f. For all other medical services, supplies, and care, 200
percent of the allowable amount under:

(I) The participating physicians fee schedule of Medicare
Part B, except as provided in sub-sub-subparagraphs (II)
and (III).

(II) Medicare Part B, in the case of services, supplies, and
care provided by ambulatory surgical centers and clinical
laboratories.

(III) 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 may limit reimbursement to 80
percent of the maximum reimbursable allowance under
workers’ compensation, as determined under s. 440.13
and rules adopted thereunder which are in effect at the
time such services, supplies, or care is provided. Services,
supplies, or care that is not reimbursable under Medicare
or workers’ compensation is not required to be reimbursed
by the insurer.

(Emphasis added).

Therefore, the question presented here is whether, under that
governing statute, Code S9088 is a type of service or care which is
reimbursable under Workers’ Compensation such that an insurer is
required to pay those charges. We hold that Code S9088 is properly
reimbursable under both the Workers’ Compensation statute as well as

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under the corresponding Administrative Code provisions and related
guides.

Sections 440.13(12)–(13), Florida Statutes (2020), create a guide to
MRAs and payment of medical fees for Workers’ Compensation. Those
sections adopt a schedule of MRAs for medically necessary services and
establish that “[p]ayment to health care providers or physicians shall be
subject to the medical fee schedule . . . .” § 440.13(12)–(13), Fla. Stat.
(2020).

In conjunction with section 440.13, Florida Administrative Code Rule
69L-7.020 adopts the Manual that “establishes reimbursement policies,
guidelines, codes and MRAs for services provided by health care
providers.” Fla. Admin. Code R. 69L-7.020. That Manual also serves as a
reference for MRAs and further stipulates that if a code has no established
MRA, the insurance carrier must have a methodology for determining
reimbursement for that code: “Carriers must have an established
methodology for determining reimbursement for procedure codes that
have no established MRAs” and “will determine reimbursement by
comparing the billed procedure code(s)”—in this case Code S9088—“with
clinically similar procedure code(s) found in the appropriate CPT or HCPCS
Manual.” See Fla. Workers’ Comp. Health Care Provider Reimbursement
Manual at 18 (2016 ed.). Even though Code S9088 does not have an
established MRA, the plain language of the applicable statutes allows for
reimbursement of Code S9088 as long as the services rendered were
medically necessary within the meaning of the Workers’ Compensation
statute as “medical services . . . used to identify or treat an illness or
injury.” § 440.13(1)(k), Fla. Stat. (2020).

Insurers’ contention that Code S9088 is non-reimbursable is incorrect.
It is true that Code S9088 has no established MRA and, thus, is not
specifically listed in the Manual. Yet not having an established MRA under
that Manual does not mean Code S9088 is not reimbursable for services
rendered at an urgent care facility. Instead, as the Manual plainly
provides, “[c]arriers must have an established methodology for
determining reimbursement for procedure codes that have no established
MRAs . . . .” Fla. Workers’ Comp. Health Care Provider Reimbursement
Manual at 18 (2016 ed.). The fact that Code S9088 does not specifically
appear in the Manual’s list of reimbursable MRA schedules does not mean
Code S9088 is not reimbursable at all. It only means Code S9088 is
calculated differently than an established MRA—that is, calculated in a
separate category as a code without an established MRA.

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 We find Insurers’ other arguments claiming they are not responsible for
or required to reimburse under Code S9088 to be similarly flawed. First,
Insurers assert that a facility code already exists in the schedule which it
previously paid. However, the payment of another code does not
necessarily mean that this code—Code S9088—cannot also be reimbursed
as an additional urgent care facility fee.

Second, Insurers point to a provision in section 440.13(12)(a) of the
Workers’ Compensation statute to suggest a reimbursement payment can
only be the amount of an “agreed-upon contract price or the maximum
reimbursement allowance in the appropriate schedule.” But rather than
limiting which expenses may be reimbursed, the formal adoption of the
Manual expanded what reimbursements are allowed by requiring insurers
to determine their own reimbursement rate when the code has no MRA or
previously agreed-upon contract price.

Finally, Insurers argue their insurance policies prevent them from
reimbursing Code S9088 due to their contracts’ exclusion of the S-code
reimbursement. To reach that conclusion, Insurers rely on an incomplete
reading of Florida’s PIP statute, focusing solely on the language which
excludes reimbursement under both Medicare and Workers’
Compensation. Such an interpretation ignores the relevant provisions of
the Workers’ Compensation statute, the Administrative Code, and the
Manual as cited above. See Fla. Workers’ Comp. Health Care Provider
Reimbursement Manual at 18 (2016 ed.). Even if Insurers’ policies
prevented them from reimbursing S-coded claims, statutory provisions
override “[a]ny insurance policy, rider, or endorsement otherwise valid
which contains any condition or provision not in compliance with the
requirements of” Florida’s insurance statutes. § 627.418(1), Fla. Stat.
(2020). A contract not in compliance is then “applied in accordance with
such conditions and provisions as would have applied had such policy,
rider, or endorsement been in full compliance with this code.” Id.

Under a plain reading of the statutes, regulations, and the applicable
reference guide provision, reimbursement of Code S9088 is permitted, and
we find no error in the trial court’s orders granting MD Now’s motions for
summary disposition and denying Insurers’ motions for summary
judgment.

Affirmed.

GROSS and CIKLIN, JJ., concur.

* * *

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Not final until disposition of timely filed motion for rehearing.

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