Opinion
Case No. 6D23-1145
05-12-2023
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. SIMONMED IMAGING, a/a/o Hilleri Brown, Appellee.
DeeAnne J. McLemore, of Banker Lopez Gassler P.A., St. Petersburg, and Chris W. Altenbernd, of Banker Lopez Gassler P.A., Tampa, for Appellant. Clay W. Schacht and Jeremy L. Hogan, of Hogan & Hogan, P.A., Orlando, for Appellee.
DeeAnne J. McLemore, of Banker Lopez Gassler P.A., St. Petersburg, and Chris W. Altenbernd, of Banker Lopez Gassler P.A., Tampa, for Appellant.
Clay W. Schacht and Jeremy L. Hogan, of Hogan & Hogan, P.A., Orlando, for Appellee.
SASSO, C.J.
Florida's Personal Injury Protection ("PIP") statute authorizes insurers to limit reimbursement of benefits in accordance with a "schedule of maximum charges" based, in part, on certain Medicare fee schedules. The statute sets a floor, providing that the payment limitation may not be less than the allowable amount under the "applicable schedule" of Medicare Part B for 2007. This case addresses a dispute over whether the "applicable schedule" as contemplated by the statute includes the lower "participating physicians fee schedule" or the higher "non-participating physicians limiting charge." Based on the plain language of the statute, we conclude that the relevant benchmark is the non-facility participating fee schedule. As a result, we reverse. In doing so we find ourselves at odds with the Third District Court of Appeal and certify conflict as a result.
This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023.
We recognize that the county court was bound by precedent from the Third District and therefore reached its decision below by accurately applying that precedent. Not similarly bound, we are free to chart our own course.
BACKGROUND
On August 12, 2015, Hilleri Brown, an insured of Progressive, was in an automobile accident. Following the accident, Brown sought treatment at SimonMed Imaging ("SimonMed") and assigned to SimonMed her benefits under her Progressive auto insurance policy containing PIP coverage. SimonMed performed a cervical MRI on Ms. Brown and sent a $1,548.72 bill to Progressive for payment. Upon receipt, Progressive consulted section 627.736(5), Florida Statutes, and determined it would pay SimonMed according to the 2007 Medicare participating physicians fee schedule. Under that fee schedule, Progressive determined the allowable amount was $1,006.02 and that its portion, at 80% of the allowable amount, was $804.82.
Taking the position that Progressive's payment was insufficient, SimonMed filed suit against Progressive in county court. In its amended statement of claim, SimonMed asserted that Progressive failed to pay the covered losses in full. In its subsequently filed motion for summary judgment, SimonMed explained that, while Progressive correctly determined the 2007 Medicare fee schedule was higher than the service-year fee schedule, section 627.736 was silent as to which 2007 fee schedule should apply. SimonMed argued that the statutory reference to the "applicable schedule" created an ambiguity that should be resolved in favor of the insured or insured's assignees. SimonMed concluded that because the Medicare "limiting charge" was higher than the participating physicians fee schedule, Progressive was required to reimburse at a rate consistent with the limiting charge. In support, SimonMed cited Priority Medical Centers, LLC a/a/o Susan Boggiardino v. Allstate Insurance Co. , 319 So. 3d 724 (Fla. 3d DCA 2021), which held that the "proper reimbursement rate is the higher 2007 non-facility limiting charge, not the lower 2007 non-facility participating price ...."
In Progressive's competing motion for summary judgment, it disagreed with SimonMed's interpretation of the statute. Progressive noted that section 627.736(5)(a) 1.f. contains three different fee schedules and that "applicable fee schedule" clearly and unambiguously "represents the fee schedule that corresponds to a particular service listed in subparagraph 1." Progressive argued that the only applicable schedule for the case was the participating physicians fee schedule—pursuant to section 627.736(5)(a) 1.f.(I)—which means that the "applicable schedule" when considering the 2007 fee schedules would also be the participating physicians fee schedule.
Progressive further argued that Medicare's limiting charge is not a fee schedule at all but rather "an amount that permits Medicare non-participating medical providers, without an assignment of benefits, to collect a certain amount for services rendered, which consists of a combination of a Medicare payment that is less than the listed fee schedule amount along with a co-payment amount from the Medicare insured."
After a hearing, the county court determined it was bound by the Third District's decision in Priority Medical , granted SimonMed's motion, and denied Progressive's.
STANDARD OF REVIEW
Because the question presents an issue of statutory interpretation, our standard of review is de novo. See Allstate Ins. Co. v. Orthopedic Specialists , 212 So. 3d 973, 975 (Fla. 2017).
ANALYSIS
The dispute in this case centers on the meaning of the "applicable schedule" as used in section 627.736(5)(a). That section, in relevant part, provides:
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).
(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.
....
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.
§ 627.736(5)(a) 1.f., (5)(a)2., Fla. Stat. (2015) (emphasis added).
SimonMed argues that the term "applicable schedule" as used in section 627.736(5)(a) 2., when read in conjunction with the "schedule of maximum charges" in section 627.736(5)(a) 1., requires reimbursement based on the highest of three available Medicare Part B payment schedules: the participating physicians fee schedule, the non-participating physicians fee schedule, or the limiting charge. SimondMed therefore asserts that Progressive was required to reimburse based on the non-facility limiting charge, as it was the highest reimbursement rate available. By contrast, Progressive argues that "applicable fee schedule" requires the reader to refer back to the particular services listed in subparagraph 1., and the only fee schedule applicable to SimonMed's reimbursement request is the participating physicians fee schedule.
Because this dispute presents an issue of statutory interpretation, we turn to the text. See Ham v. Portfolio Recovery Assocs. , 308 So. 3d 942, 946 (Fla. 2020) (explaining that in interpreting a statute this Court "follow[s] the ‘supremacy-of-text principle’—namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means’ " (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012))). And in reviewing the statute as a whole, a few points become immediately apparent.
To begin, subparagraph 1. of section 627.736(5)(a) employs the words "may limit," which sets a floor for reimbursement rates. The next portion of that subparagraph uses the language, "to 80% of the following schedule of maximum charges," which signals to the reader that the statute will also define the floor. See id. (emphasis added). Reading further down, the reader finds schedules applicable to various services including emergency transport, emergency services, and finally—to the category relevant to this dispute—for "all other medical services, supplies, and care." See id.
As to "all other medical services, supplies, and care," section 627.736(5)(a) 1.f. then delineates three specific fee schedules applicable to that category of services, one of which is relevant to these proceedings. Specifically, section 627.736(5)(a) 1.f. provides that the "participating fee schedule of Medicare Part B" applies to "all other medical services."
What follows is subparagraph 2., which provides additional details regarding the fee schedules listed in subparagraph 1. That subsection states that "for the purposes of subparagraph 1.," the fee schedule in effect on March 1 of the service year applies, "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. (emphasis added).
It is the relationship between subparagraphs 1. and 2. that leads us to the issue presented in this case: whether the inclusion of "applicable schedule" in subparagraph 2. provides additional specificity as to the application of the specific fee schedules referenced in subparagraph 1., as Progressive argues, or whether inclusion of "applicable schedule" requires the reader to reference a fee schedule other than those identified by the statute to determine the rate at which an insurer must reimburse a medical provider.
In ascertaining the meaning of the "applicable schedule," we view the term in light of the statute's overall structure and the physical and logical relation of its many parts. See generally State v. Gabriel , 314 So. 3d 1243, 1249 (Fla. 2021) (citing Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So. 2d 452, 455 (Fla. 1992) ("It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.")); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (noting "context is a primary determinant of meaning"). And viewing the term in this manner, the only reasonable conclusion one can draw from the text in context is that the term "applicable schedule" in subparagraph 2. refers back to the three delineated fee schedules in subparagraph 1. In fact, the text of subparagraph 2. spells it out, plainly noting it exists "for the purposes of subsection 1." Moreover, there is nothing discernable from the statute's text, structure, or operation that would suggest the term requires the reader to look beyond the three delineated fee schedules in subparagraph 1. or that the limiting charge is somehow silently incorporated into the statutory text.
Discarding section 627.736(5) ’s text and structure, SimonMed instead relies on statutory history and precedent from other courts. But neither save SimonMed's position.
As to statutory history, SimonMed states this court "must review" the statutory history, and in doing so, the "2001, 2003, 2008, and 2012 amendments ... make it absolutely clear that the legislature intended to include the 2007 limiting charge as one of the applicable fee schedules for reimbursement under a PIP policy." This argument fails in both methodology and application.
First, SimonMed's preferred methodology is rooted in its assertion that "legislative intent" is the polestar that guides this court's analysis and "the court applies rules of statutory construction to discern legislative intent." But this assertion overlooks the Florida Supreme Court's clarification that "such statements can be misleading because they may be understood to shift the focus of interpretation from the text and its context to extraneous considerations." Advisory Op. to Governor re Implementation of Amend. 4, The Voting Restoration Amend. , 288 So. 3d 1070, 1078 (Fla. 2020). Indeed, accepting SimonMed's methodological approach would do just that. Rather than discerning meaning from the enacted text, SimonMed would have this court search out external considerations in order to justify a strained alternative reading. We recognize that, appropriately employed, statutory history can cast light on "the context of the statute." See, e.g. , Bourdon v. U.S. Dep't of Homeland Sec. (DHS) , 940 F.3d 537, 543–44 (11th Cir. 2019) (citing Scalia & Garner, supra , at 256). However, context remains "a tool for understanding the terms of the law, not an excuse for rewriting them." King v. Burwell , 576 U.S. 473, 501, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (Scalia, J., dissenting).
As distinguished from "legislative history," i.e. the hearings, committee reports, and debates leading up to the enactment of a statute, "statutory history" refers to the statutes repealed or amended by the statute under consideration.
Even if we were to explore statutory history, it provides no refuge for SimonMed's argument. Instead, the conclusion that section 627.736 does not incorporate the limiting charge is consistent with the maxim that "[w]hen 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 to it before the amendment." See Aetna Cas. & Sur. Co. v. Buck , 594 So. 2d 280, 283 (Fla. 1992). Prior to 2012, the participating physicians fee schedule was the only Medicare Part B fee schedule listed in the Schedule of Maximum Charges, and thus, the only Medicare Part B fee schedule permitted to be used for reimbursement by the Florida Legislature. In 2012, the Florida Legislature substantially amended the Schedule of Maximum Charges, including subsection (5)(a)2., and added two more Medicare Part B fee schedules—the ambulatory/clinical laboratories and the DME fee schedules—to subparagraph 1.f. Because the Florida Legislature added the two new fee schedules in 2012, the Legislature apparently broadened the language of subsection (5)(a)2. to encompass them. That amended language now reads: "except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007." As a result, the most logical interpretation is that the amended language simply expanded the scope of the 2007 schedule language to include all three permissible Medicare Part B fee schedules explicitly listed in subparagraph 1.f.
Likewise, we are unpersuaded by SimonMed's reliance on Priority Medical Centers , 319 So. 3d 724 (Fla. 3d DCA 2021). Instead, we agree with the Fourth District's observation that Priority Medical focused on the changes to subparagraph 2. in isolation and on the Legislature's omission of "participating physician fee schedule" in that subparagraph, instead of evaluating the changes to the overall statutory scheme affected by the 2012 amendments to both subparagraphs 1. and 2. See generally Progressive Select Ins. Co. v. In House Diagnostic Servs., Inc. , 4D21-2581, 359 So.3d 817 (Fla. 4th DCA Apr. 26, 2023). However, we recognize that Priority Medical ’s holding that "the proper reimbursement rate is the higher 2007 non-facility limiting charge, not the lower 2007 non-facility participating price" directly conflicts with our holding, and we therefore certify conflict with it.
Statutory history and precedent aside, SimonMed's argument fails for a third reason—the limiting charge is not a fee schedule. As the Fourth District recently explained, the limiting charge only comes into play when a provider elects not to accept an assignment of benefits:
If a provider does not accept all assignments on Medicare claims, the provider may still be reimbursed under the nonparticipating physicians’ fee schedule if the provider accepts the assignment. If the provider elects to not accept the assignment, then the provider is permitted to charge the insured an additional amount over what Medicare would approve, which is called the limiting charge.
In House Diagnostic Servs., Inc., A/A/O Darryl Frazier , 359 So.3d at 821. So rather than a "fee schedule," the limiting charge is more accurately characterized as "the amount which a provider may directly bill an insured." See id. (citing Ctrs. for Medicare & Medicaid Servs., Glossary, Limiting Charge , https://www.cms.gov/glossary (last visited Sept. 1, 2022) (defining "limiting charge" as "the highest amount of money [the insured] can be charged for a covered service by doctors and other health care suppliers who don't accept assignment").
CONCLUSION
Based on the plain language of section 627.736(5)(a), we conclude that Progressive correctly argues that the participating physicians fees schedule—which is the only applicable schedule listed in subparagraph 1.—applies. As a result, we reverse the summary judgment entered in favor of SimonMed and remand for entry of summary judgment in favor of Progressive. Finally, we certify conflict with Priority Medical .
REVERSED and REMANDED, with instructions. CONFLICT CERTIFIED.
TRAVER and MIZE, JJ., concur.