ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY v. JEFFREY L. KATZELL, M.D., P.A. a/a/o SYLVIANE LOUVRIER

A
       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

      ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
                         Appellant,

                                    v.

   JEFFREY L. KATZELL, M.D., P.A. a/a/o SYLVIANE LOUVRIER,
                          Appellee.

                             No. 4D21-1044

                             [June 23, 2021]

   Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Jennifer Hilal, Judge; L.T. Case Nos. COSO16-11377
and COCE19-20798 (48).

   Daniel E. Nordby of Shutts & Bowen LLP, Tallahassee, and Garrett A.
Tozier of Shutts & Bowen LLP, Tampa, for appellant.

   Matthew Emanuel of Landau & Associates, P.A., Sunrise, for appellee.

                       ON CONFESSION OF ERROR

DAMOORGIAN, J.

   In this action for unpaid personal injury protection (“PIP”) benefits,
Allstate Fire and Casualty Insurance Company (“Allstate”) appeals the final
summary judgment entered in favor of Jeffrey L. Katzell, M.D., P.A. a/a/o
Sylviane Louvrier (“Provider”). The court entered judgment in Provider’s
favor on the basis that Allstate made improper overpayments for X-ray and
MRI procedures by reimbursing at the higher 2007 non-facility limiting
charge rather than at the lower 2007 non-facility participating price.
Based on the recent decision in Priority Medical Centers, LLC v. Allstate
Insurance Co., 46 Fla. L. Weekly D978 (Fla. 3d DCA Apr. 28, 2021),
wherein the Third District held that the proper reimbursement rate for
these types of services is the higher 2007 non-facility limiting charge and
not the lower 2007 non-facility participating price, Provider has filed a
confession of error in this case. We accept the confession of error and
reverse.
   There is no dispute as to the underlying facts in this case. Sylviane
Louvrier, the insured, sought medical treatment from Provider for injuries
he sustained in a car accident. Provider obtained an assignment of PIP
benefits under the insured’s policy with Allstate and submitted bills for
reimbursement to Allstate. Out of the $10,000 available in PIP benefits,
Allstate paid Provider the sum of $281.33 and denied the remainder of
Provider’s bills because benefits were exhausted.

    Provider thereafter sued Allstate, arguing that Allstate “improperly
and/or gratuitously” exhausted benefits by issuing payments to
Independent Imaging LLC, a different medical provider that also treated
the insured.     Specifically, Provider argued that Allstate improperly
reimbursed Independent Imaging LLC at the higher 2007 non-facility
limiting charge rather than at the lower 2007 non-facility participating
price for CPT codes 72110 (lumbar X-ray), 72050 (cervical X-ray), 72141
(cervical MRI), and 72148 (lumbar MRI). Had Allstate paid Independent
Imaging LLC pursuant to the lower 2007 non-facility participating price,
then additional benefits would have remained to satisfy Provider’s bills.
The court ultimately agreed with Provider, concluding that Allstate’s
“payment made over the amount of the Participating Physicians fee
schedule of Medicare Part B was gratuitous and should not count against
the $10,000 PIP limit.” The court then entered final summary judgment
in favor of Provider in the amount of $124.17. This appeal follows.

   In Priority Medical Centers, LLC, the Third District recently clarified
that, under the current PIP statute, the proper reimbursement rate for
these types of services is the higher 2007 non-facility limiting charge, not
the lower 2007 non-facility participating price. 46 Fla. L. Weekly at D979.
In so holding, the court explained:

         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

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      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. &
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

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     reimbursement, it must first compare the amount for the
     Medicare fee schedule in effect at the time services were
     rendered, in 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,”
     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.

Id.

 at D979–80.

   We adopt the reasoning in Priority Medical Centers, LLC and hold that
Allstate properly reimbursed Independent Imaging LLC at the higher 2007
non-facility limiting charge for CPT codes 72110, 72050, 72141, and
72148. As the Provider did not contest any other payments made by

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Allstate, we reverse and remand for entry of final summary judgment in
Allstate’s favor. See Northwoods Sports Med. & Physical Rehab., Inc. v.
State Farm Mut. Auto. Ins. Co., 

137 So. 3d 1049

, 1057 (Fla. 4th DCA 2014)
(“Once the PIP benefits are exhausted through the payment of valid claims,
an insurer has no further liability on unresolved, pending claims, absent
bad faith in the handling of the claim by the insurance company.”).

   Reversed and remanded.

GROSS and MAY, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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