STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. STAND UP MRI OF BOCA RATON, P.A. A/A/O MIKE RAMAZIO

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
STAND UP MRI OF BOCA RATON, P.A. a/a/o MIKE RAMAZIO,
Appellee.
No. 4D21-310
[May 26, 2021]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Reginald Roy Corlew, Judge; L.T. Case Nos. 2016SC8713
and 2019AP150.
Tracy T. Segal of Akerman LLP, West Palm Beach, and Marcy Levine
Aldrich and Nancy A. Copperthwaite of Akerman LLP, Miami, for appellant.
Virginia M. Best and Johanna M. Menendez of Best & Menendez,
Miami, for appellee.
PER CURIAM.
In this personal injury protection (“PIP”) case, State Farm Mutual
Automobile Insurance Company appeals a final summary judgment
entered in favor of the plaintiff below, Stand-Up MRI of Boca Raton a/a/o
Mike Ramazio (“Stand Up MRI”). We reverse, holding that the PIP statute
does not preclude State Farm’s method of calculating reimbursement.
Mike Ramazio had an automobile insurance policy with State Farm that
provided mandatory PIP coverage. In June 2013, Ramazio was injured in
an automobile accident. On June 30, 2013, Stand-Up MRI performed
three MRIs on Ramazio in exchange for an assignment of Ramazio’s PIP
benefits. Stand-Up MRI billed State Farm a total of $4,800 ($1,600 for
each MRI). State Farm paid a total of $2,551.16 for the three MRIs—
$1,258.02 on one, $663.03 on the second, and $630.11 on the third. State
Farm’s payment was based upon 200% of the 2007 Medicare Part B fee
schedule and application of the Medicare Multiple Procedure Payment
Reduction (“MPPR”).
Stand-Up MRI wrote State Farm, objecting to the MPPR reductions and
demanding additional payment, claiming that it was owed an additional
$779.16—$375.91 on one MRI and $403.25 for the other. Stand-Up MRI
did not challenge the $1,258.02 reimbursement.
When State Farm failed to make additional payment, Stand-Up MRI, as
assignee of Ramazio, filed a breach of contract action against State Farm,
seeking unpaid PIP benefits under the Florida PIP statute and Ramazio’s
insurance policy. State Farm answered the complaint and denied liability.
The parties filed cross-motions for summary judgment.
After a summary judgment hearing, the trial court denied State Farm’s
motion and granted Stand Up MRI’s motion. The court ruled that section
627.736(5)(a)2., Florida Statutes (2013), creates a floor for reimbursing
benefits under a PIP claim. The court subsequently entered final judgment
in favor of Stand Up MRI for $779.16 plus interest.
The PIP Statute Did Not Preclude State Farm’s Method of
Reimbursing the Three MRIs That Were Conducted on the Same Day
Resolution of this case requires application of relevant portions of
Florida’s PIP statute as well as State Farm’s policy. Before proceeding to
the merits of the case, we first discuss the pertinent sections of Florida’s
PIP statute and State Farm’s policy.
1. Florida’s PIP Statute
Florida’s Motor Vehicle No-Fault law provides for PIP benefits. See §
627.736, Fla. Stat. (2013). Over the years, the legislature has amended
the PIP statute multiple times, with substantial amendments occurring in
2012.
In 2012, the legislature added language allowing insurers to apply
Medicare coding policies and payment methodologies to determine
reimbursement amounts:
3. Subparagraph 1. does not allow the insurer to apply any
limitation on the number of treatments or other utilization
limits that apply under Medicare or workers’ compensation.
An insurer that applies the allowable payment limitations of
subparagraph 1. must reimburse a provider who lawfully
provided care or treatment under the scope of his or her
license, regardless of whether such provider is entitled to
2
reimbursement under Medicare due to restrictions or
limitations on the types or discipline of health care providers
who may be reimbursed for particular procedures or
procedure codes. However, subparagraph 1. does not prohibit
an insurer from using the Medicare coding policies and
payment methodologies of the federal Centers for Medicare
and Medicaid Services, including applicable modifiers, to
determine the appropriate amount of reimbursement for
medical services, supplies, or care if the coding policy or
payment methodology does not constitute a utilization limit.
§ 627.736(5)(a)3., Fla. Stat. (2013). The legislature also added a notice
provision requiring that insurers notify their policyholders at the time of
issuance or renewal of the insurer’s election to limit payment pursuant to
the schedule of maximum charges:
5. Effective July 1, 2012, an insurer may limit payment as
authorized by this paragraph only if the insurance policy
includes a notice at the time of issuance or renewal that the
insurer may limit payment pursuant to the schedule of
charges specified in this paragraph. A policy form approved
by the office satisfies this requirement. If a provider submits
a charge for an amount less than the amount allowed under
subparagraph 1., the insurer must pay the amount of the
charge submitted.
§ 627.736(5)(a)5., Fla. Stat. (2013).
2. State Farm’s Policy
The policy at issue in this case—policy booklet form 9810A— provides
in pertinent part:
No-Fault Coverage
Insuring Agreement
We will pay in accordance with the No-Fault Act properly
billed and documented reasonable charges for bodily injury
to an insured caused by an accident resulting from the
ownership, maintenance, or use of a motor vehicle as follows:
2. Medical Expenses
3
We will pay 80% of properly billed and documented medical
expenses, but only if that insured receives initial services and
care from a provider described in A. below within 14 days after
the motor vehicle accident that caused bodily injury to that
insured.
***
Limits
3. We will not pay any charge that the No-Fault Act does not
require us to pay, or the amount of any charge that exceeds
the amount the No-Fault Act allows to be charged.
4. The most we will pay for each injured insured as a result
of any one accident is $10,000 for all combined Medical
Expenses, Income Loss, and Replacement Services Loss
described in the Insuring Agreement of this policy’s No-Fault
Coverage.
***
We will limit payment of Medical Expenses described in the
Insuring Agreement of this policy’s No-Fault coverage to 80%
of a properly billed and documented reasonable charge, but
in no event will we pay more than 80% of the following No-
Fault Act “schedule of maximum charges” including the use
of Medicare coding policies and payment methodologies of the
federal Centers for Medicare and Medicaid Services, including
applicable modifiers:
***
(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).
***
For purposes of the above, the applicable fee schedule or
payment limitation under Medicare is the fee schedule or
payment limitation in effect on March 1 of the 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
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throughout the remainder of that year, notwithstanding any
subsequent change made to the fee schedule or payment
limitation, except that it will 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.
3. State Farm’s Reimbursement to Stand-Up MRI
In this case, State Farm applied the MPPR to reduce the reimbursement
amount paid to Stand-Up MRI. “MPPR is basically a payment methodology
used by the Medicare program to reduce payment for medical services
when two or more services have been rendered on the same day, to the
same patient, by the same physician, in the same session.” State Farm
Mut. Auto. Ins. Co. v. Millennium Radiology, LLC, 27 Fla. L. Weekly Supp.
998a, 2019 WL 8301181, at *2 (Fla. 11th Cir. Ct. Feb. 8, 2019). The
rationale behind the MPPR is that “[p]erforming all services in one session
reduces time, labor, and general costs associated with performing multiple
procedures.” Id.The MPPR provides that the service with the highest practice expense
will be reimbursed at 100% and then any other services will be reimbursed
at 50%. See Centers for Medicare & Medicaid Services, Medicare Learning
Network, MLN Matters, No. MM8206 (Apr. 1, 2013), available at
https://www.cms.gov/outreach-and-education/medicare-learning-
network-mln/mlnmattersarticles/downloads/MM8206.pdf; Fakhoury
Med. & Chiro. Ctr., PLLC v. Progressive Am. Ins. Co., 27 Fla. L. Weekly
Supp. 289a (Marion Cty. Ct. June 22, 2018).
Here, the trial court determined that regardless of whether State Farm
was permitted to use the MPPR to reduce the reimbursement amount paid
to Stand-Up MRI, it could not reimburse less than the allowable amount
under the 2007 Medicare Part B schedule because both section
627.736(5)(a)2. and the policy at issue created a floor for reimbursing PIP
benefits.
Neither the statute nor the policy at issue support such a conclusion.
“It is a fundamental principle of statutory interpretation that legislative
intent is the ‘polestar’ that guides this Court’s interpretation.” Borden v.
E.-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). “We endeavor to
construe statutes to effectuate the intent of the Legislature.” Id. “To
discern legislative intent, we look ‘primarily’ to the actual language used
in the statute.” Id. “When the language of the statute is clear and
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unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.”
Valencia Reserve Homeowners Ass’n v. Boynton Beach Assocs., XIX, LLLP,
278 So. 3d 714, 717 (Fla. 4th DCA 2019) (citation omitted). “The court
must give effect to all parts of the statute and avoid readings that would
render a part thereof meaningless, and it must read all parts of a statute
together in order to achieve a consistent whole.” Coastal Creek Condo.
Ass’n v. Fla. Tr. Servs. LLC, 275 So. 3d 836, 838–39 (Fla. 1st DCA 2019),
review denied, SC19-1391, 2019 WL 6249333 (Fla. Nov. 22, 2019).
Section 627.736(5)(a)1. (“subparagraph 1”) identifies different formulas
for determining reimbursement under the schedule of maximum charges
depending on the type of provider and the nature of the services. For the
MRIs here at issue, the applicable portion of the schedule of maximum
charges is section 627.736(5)(a)1.f.(I), Florida Statutes (2013), which
requires insurers to pay 80% of 200% of the allowable amount under the
participating physicians fee schedule of Medicare Part B:
1. The insurer may limit reimbursement to 80 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).
§ 627.736(5)(a)1.f.(I), Fla. Stat. (2013).
Section 627.736(5)(a)2. (“subparagraph 2”) addresses what fee
schedule should be used when determining the allowable amount
referenced in subparagraph 1:
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 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
throughout the remainder of that year, notwithstanding any
subsequent change made to the fee schedule or payment
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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.
§ 627.736(5)(a)2., Fla. Stat. (2013) (emphasis added).
Finally, section 627.736(5)(a)3. (“subparagraph 3”) provides that
insurers can use Medicare coding policies and payment methodologies,
including applicable modifiers, to determine the appropriate amount of
reimbursement:
Subparagraph 1. does not allow the insurer to apply any
limitation on the number of treatments or other utilization
limits that apply under Medicare or workers’ compensation.
An insurer that applies the allowable payment limitations of
subparagraph 1. must reimburse a provider who lawfully
provided care or treatment under the scope of his or her
license, regardless of whether such provider is entitled to
reimbursement under Medicare due to restrictions or
limitations on the types or discipline of health care providers
who may be reimbursed for particular procedures or
procedure codes. However, subparagraph 1. does not prohibit
an insurer from using the Medicare coding policies and
payment methodologies of the federal Centers for Medicare and
Medicaid services, including applicable modifiers, to determine
the appropriate amount of reimbursement for medical services,
supplies, or care if the coding policy or payment methodology
does not constitute a utilization limit.
§ 627.736(5)(a)3., Fla. Stat. (2013) (emphasis added).
As written, subparagraph 2 does not modify or limit subparagraph 3,
or vice versa, but instead they each separately address subparagraph 1.
Subparagraph 2 focuses on what fee schedule should be used when
determining the allowable amount referenced in subparagraph 1.
Contrary to the county court’s conclusion below, subparagraph 2 does not
establish a “floor” for reimbursing PIP benefits. Instead, subparagraph 2
provides that the allowable amount in the 2007 Medicare Part B fee
schedule must be used when it is higher than the applicable year’s
Medicare Part B fee schedule’s allowable amount. After determining which
fee schedule should be used pursuant to subparagraph 2, subparagraph
3 then provides that insurers can use Medicare coding policies and
payment methodologies when determining the reimbursement amount.
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There is no language in subparagraph 3 stating, or suggesting, that
subparagraph 2 creates a limitation or restriction in the reimbursement
amount.
As State Farm argues, the schedule of maximum charges is simply a
base rate that may be adjusted downwards by applying Medicare coding
policies and payment methodologies, such as the MPPR, to determine the
appropriate amount of reimbursement. “[W]hile [subparagraph 2]
establishes that the allowable amount in the 2007 Medicare Part B fee
schedule must be used when it is higher than the applicable year’s
Medicare Part B fee schedule’s allowable amount, [subparagraph 3]
permits that allowable amount to then be reduced by the applicable and
permissible Medicare coding policies and CMS payment methodologies
when determining the amount of reimbursement for the claim.” State
Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Servs. Inc., 26 Fla. L. Weekly
Supp. 466b, 2018 WL 10626018, at *3 (Fla. 17th Cir. Ct. Sept. 5, 2018);
see also Fountains Therapy Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 27
Fla. L. Weekly Supp. 755a (Broward Cty. Ct. Oct. 7, 2019) (“Subparagraph
(2) clarifies what fee schedule should be used when determining the
allowable amount referenced in subparagraph (1). Subparagraph (3)
makes it clear that insurers can use Medicare coding policies and CMS
payment methodologies when determining the reimbursement amount.”).
Stand-Up MRI asserts that State Farm’s interpretation would rewrite
the plain language of the statute to “excise subparagraph 2 when
subparagraph 3 applies” and violate various canons of statutory
construction. However, State Farm’s interpretation allows the
subparagraphs to be read in harmony with one another, whereas the
interpretation adopted by the trial court would rob subparagraph 3 of
meaning. “Statutory construction requires that all subparagraphs must
be given meaning, and if the Legislature had wanted the 2007 schedule of
Medicare Part B to always be the floor for reimbursement, they could have
added the same sentence from subparagraph 2 in all of the remaining
subparagraphs (where it is absent).” State Farm Mut. Auto. Ins. Co. v. Pan
Am Diagnostic Servs. Inc., 26 Fla. L. Weekly Supp. 466b, 2018 WL
10626018, at *3 (Fla. 17th Cir. Ct. Sept. 5, 2018). See also Fountains
Therapy Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 27 Fla. L. Weekly Supp.
755a (Broward Cty. Ct. Oct. 7, 2019) (“Had the legislature intended for
insurers to only be permitted to use Medicare coding policies and CMS
payment methodologies if the reimbursement amount equaled more than
the allowable amount in Medicare Part B’s 2007 fee schedule [i.e.
subsection (2) created a prohibition on subsection (3)], the legislature
could have drafted a provision that specifically stated so.”). We read
subparagraph 3 as permitting insurers to use Medicare coding policies and
8
payment methodologies, such as MPPR, to reduce the reimbursement
amount for PIP benefits below the applicable amount under the 2007
Medicare Part B schedule.
Stand-Up MRI argued below—and the county court agreed—that State
Farm’s insurance policy also incorporated a floor for reimbursing PIP
benefits, even if the MPPR is applied. “When ‘interpreting an insurance
contract,’ this Court is ‘bound by the plain meaning of the contract’s text.’”
Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 157 (Fla.
2013) (quoting State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566,
569 (Fla. 2011)). “If the language used in an insurance policy is plain and
unambiguous, a court must interpret the policy in accordance with the
plain meaning of the language used so as to give effect to the policy as it
was written.” Id. Any ambiguities are liberally construed in favor of the
insured and strictly against the insurer as the drafter of the policy.
Chandler v. Geico Indem. Co., 78 So. 3d 1293, 1300 (Fla. 2011).
Although the policy language quoted above is formatted differently, it
has the same effect as the language in section 627.736(5)(a). As Judge Di
Pietro explained when interpreting identical policy language in Plantation
Open MRI, LLC v. State Farm Mutual Automobile Insurance Co., 25 Fla. L.
Weekly Supp. 831a (Broward Cty. Ct. Nov. 3, 2017):
[State Farm]’s policy states that it will not pay more than 80%
of the schedule of maximum charges including the use of
Medicare coding policies and payment methodologies of the
federal Centers for Medicare and Medicaid Services. While
[State Farm]’s policy contains a directive for which fee
schedule must be used, the directive does not override [State
Farm]’s ability to then reduce that fee schedule’s allowable
amount through the use of Medicare coding policies and
payment methodologies of the federal Centers for Medicare
and Medicaid Services. Therefore, the Court finds that [State
Farm]’s Policy Form 9810A permitted [State Farm] to
reimburse Plaintiff below the 2007 Medicare Part B fee
schedule through the application of MPPR.
We conclude that neither the PIP statute, nor State Farm’s policy,
prohibit State Farm from applying the MPPR to reduce the reimbursement
to an amount less than the allowable amount of the 2007 Medicare Part B
fee schedule.
9
State Farm’s Policy Provides Adequate Notice of Its Intent to Use
Medicare Coding Policies and Payment Methodologies, Such As the
MPPR
Following the 2012 amendments to the PIP statute, section
627.736(5)(a)5., Florida Statutes (2013), requires that insurers notify their
insureds at the time of policy issuance or renewal of the insurer’s election
to limit reimbursement pursuant to the fee schedules in the PIP statute:
Effective July 1, 2012, an insurer may limit payment as
authorized by this paragraph only if the insurance policy
includes a notice at the time of issuance or renewal that the
insurer may limit payment pursuant to the schedule of
charges specified in this paragraph.
The statute provides that “[a] policy form approved by the office [of
Insurance Regulation] satisfies this requirement.” Id.Stand-Up MRI acknowledges that the policy “seem[s] to have elected to
utilize the permissive Medicare Part B fee schedule regarding the PIP
schedule of maximum charges” but argues that the policy’s reference to
“Medicare coding policies and payment methodologies” does not give
sufficient notice of State Farm’s intent to apply the MPPR to reduce the
reimbursement amount.
We agree with those circuit courts sitting in their appellate capacity
which have determined that State Farm’s policy language clearly and
unambiguously elects the use of Medicare coding policies and payment
methodologies, which include use of the MPPR, even if the policy does not
specifically mention MPPR.
In State Farm Mutual Insurance Company v. Millennium Radiology, LLC,
26 Fla. L. Weekly Supp. 871a, 2019 WL 8375937 (Fla. 11th Cir. Ct. Jan.
9, 2019), the Eleventh Judicial Circuit Court, sitting in its appellate
capacity, was faced with identical language in a State Farm insurance
policy. Recognizing there was no binding case law regarding the
application of MPPR to PIP claims where the policy does not specifically
mention the term “MPPR,” the court looked to a similar challenge to policy
language in Orthopedic Specialists v. Allstate Insurance Company, 212 So.
3d 973 (Fla. 2017). There, the Florida Supreme Court concluded that the
Allstate policy was clear and unambiguous in its election of the Medicare
fee schedule, even though the policy did not specifically mention the term
“Medicare” when it elected to utilize the Medicare fee schedule in the
10
payment of claims. Millennium, 26 Fla. L. Weekly Supp. 871a, 2019 WL
8375937, at *3 (Fla. 11th Cir. Ct. Jan. 9, 2019).
The Millennium court reasoned that “[i]f settled case law does not
require an insurer to specify ‘Medicare’ in electing and notifying its insured
of the use of the Medicare fee schedule, then it is presumably not required
to specify the use of the term ‘MPPR’ in notifying the insured of the use of
this particular Medicare payment methodology.” Id. In determining that
State Farm’s policy language provided adequate notice of State Farm’s
intent to employ such a payment reduction, the Millennium court also
noted that the policy tracked the language of the 2012 statutory
amendment. Id. 1
We hold that State Farm’s policy provided sufficient “notice” of its intent
to utilize “Medicare coding policies and payment methodologies of the
federal Centers for Medicare and Medicaid Services, including applicable
modifiers,” such as the MPPR.
1 Since Millennium was decided, Florida courts have continued to conclude that
State Farm’s policy provides adequate notice under section 627.736(5)(a)5. See
State Farm Mut. Auto. Ins. Co. v. Millennium Radiology, LLC, 27 Fla. L. Weekly
Supp. 998a, 2019 WL 8301181, at *1 (Fla. 11th Cir. Ct. Feb. 8, 2019) (“This
Appellate Court finds that the State Farm Policy clearly and unambiguously
elects the use o[f] Medicare coding policies and payment methodologies, which
includes utilization of the MPPR method.”); State Farm. Mut. Auto. Ins. Co. v. Pan
Am Diagnostic Servs., Inc., 2019 WL 8375936, at *3 (Fla. 11th Cir. Ct. Mar. 1,
2019) (“We find the plain language of State Farm’s Form 9810A PIP policy satisfies
Virtual Imaging’s simple notice requirement and Form 9810A properly complies
with the notice provision of section 627.736(5)(a)5, Florida Statutes (2012).”);
State Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Servs. Inc., 2018 WL
10626018, at *4 (Fla. 17th Cir. Ct. Sept. 5, 2018) (“[T]he unambiguous language
of Form 9810A PIP policy states that State Farm will be using the fee schedule of
maximum charges and CMS coding polices and payment methodologies including
applicable modifiers [MPPR] to determine reimbursement. We find that State
Farm's Form 9810A PIP policy properly complies with the notice provision of
section 627.736(5)(a)5, Florida Statutes (2013)”). It is also worth noting that
State Farm’s 9810A form policy has been approved by the Office of Insurance
Regulation, which satisfies the notice requirement of section 627.736(5)(a)5. See
State Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Servs. Inc., 2018 WL
10626018, at *4 (Fla. 17th Cir. Ct. Sept. 5, 2018) (“State Farm satisfied the 2013
statutory notice requirement of section 627.736(5)(a)5, Florida Statutes by having
its Form 9810A PIP policy approved by the OIR. Thus, as a matter of law, State
Farm’s Form 9810A policy complied with section 627.736(5)(a)5, Florida
Statutes.”).
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We reverse the summary final judgment and remand to the county
court for the entry of a summary final judgment in favor of State Farm.
GROSS, GERBER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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