13 Fla. L. Weekly Supp. 489b
Insurance — Personal injury protection — Coverage — Medical expenses — Nerve conduction testing — Only NCV that is exclusively and entirely performed by physician can be reimbursed at higher Medicare rate — NCV performed by physician’s assistant is compensated at lower workers’ compensation rate
NORTHEAST FLORIDA NEUROLOGY CLINIC, INC. as assignee of DERYLL MATTHEW, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY. County Court, 4th Judicial Circuit in and for Duval County. Case No. 04-SC-9900, Division B. February 16, 2006. Roberto Arias, Judge. Counsel: Kelly B. Hampton, Jacksonville. Glenn S. Banner, James C. Rinaman, III & Associates, P.A., Jacksonville.
AMENDED ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY DISPOSITION
THIS CAUSE came on to be heard upon the Defendant’s Motion for Final Summary Disposition. Present before the Court appeared Kelly B. Hampton, Esquire, on behalf of the Plaintiff and Glenn S. Banner, Esquire for Defendant. After having heard the arguments of counsel for both parties, evidence presented, discovery filed and memoranda of law submitted by the parties, the Court finds that the Defendant’s Motion for Final Summary Disposition should be granted.
FACTUAL BACKGROUND
This cause arises out of a motor vehicle accident which occurred on May 19, 2004. The insured, Deryll Matthew, received bodily injuries as a result of that motor vehicle accident. The insured was treated by Richard J. Boehme, M.D. (herein after referred to as Dr. Boehme) who, during the treatment, ordered the insured to undergo nerve conduction studies. On August 2, 2004, the insured underwent nerve conduction velocity (hereinafter referred to as “NCV”) studies in conjunction with needle electromyography (hereinafter referred to as “EMG”). The Plaintiff submitted a medical bill in the amount of $422.00, in the form of a health insurance claim form (“HCFA”) to Defendant under CPT codes 95903 and 95904 (Physician’s Current Procedural Terminology Codes, for the NCV studies. The HCFA form and the medical notes submitted to the Defendant indicated that the nerve conduction tests were performed by Dr. Boehme.
The Defendant paid Plaintiff for the nerve conduction test at 200% of the Medicare part B schedule pursuant to Section 627.736(5)(b)(3), Florida Statute (2004). The Plaintiff paid $147.68 (80%) of $184.60 for CPT code 95903 and $63.82 (80%) of $79.77 for CPT code 95904. When paying that same HFCA form, the Defendant reduced the EMG procedure billed by the Plaintiff (CPT code 95860) in the amount of $27.30 (80% of the reduction of $34.13). During discovery, the Plaintiff admitted, through its responses to Defendant’s Third Request for Admissions, that the needle EMG procedure administered on August 2, 2004 was not personally performed by Dr. Boehme in that he did not personally insert the needle into the extremity of the insured. Similarly, Dr. Boehme did not personally place any electrodes on the skin of Derryll Matthew for the NCV studies administered on August 2, 2004. The Plaintiff admitted that it was Dr. Boehme’s physician assistant, Marvin West, who performed and assisted in the performance of the NCV and EMG studies described above.
PROCEDURAL HISTORY
The Plaintiff filed an action against Defendant to recover personal injury protection benefits in which it claimed Defendant had improperly reduced the charges billed for the EMG test. The Plaintiff’s cause of action was predicated on the failure of Defendant to pay the allowable charges for the EMG billed in the HCFA form relating to the August 2, 2004. The Defendant filed an Answer and Affirmative Defenses which was thereafter amended and a second Affirmative Defense of recoupment was added. Through its second Affirmative Defense of recoupment, the Defendant sought to recoup alleged overpayment for the August 2, 2004 NCV studies because these studies were performed by physician’s assistant rather than Dr. Boehme and, therefore, should have been reimbursed at the lesser worker’s compensation rate pursuant to Section 627.736(5)(b)(4), Florida Statutes. If the Plaintiff should not have been compensated under Section 627.763(5)(b)(3), Florida Statutes, but rather under Section 627.736(5)(b)(4), Florida Statutes, the Plaintiff would have been overpaid $45.90. The Defendant’s overpayment to the Plaintiff for the NCV studies exceeded the reduction of the charges for the EMG procedure, which supported the Plaintiff’s cause of action. Therefore, if the Defendant is able to recoup the overpayment, the Plaintiff’s ability to recover any damages would be extinguished.
DISCUSSION OF LAW
Both parties agree that if Defendant is successful in recouping the overpayments, the Plaintiff could not recover under it’s Complaint and that Defendant’s Motion for Final Summary Disposition should be granted. See, Storrs v. Storrs, 178 So. 841 (Fla. 1937) and Payne v. Nicholson, 131 So. 324 (Fla. 1930). Therefore, resolution of the Defendant’s Motion for Final Summary Disposition rests upon this Court’s determination of whether the Plaintiff’s charges for the nerve conduction test should be paid at the rate of 200% of the Medicare part B schedule, pursuant to Section 627.736(5)(b)(3), Florida Statutes or whether it should have been reimbursed under Section 627.736(5)(b)(4), Florida Statutes which would allow reimbursement at the lesser rate, pursuant to the worker’s compensation fee schedule established to pursuant to Section 440.13, Florida Statutes.
Section 627.736(5)(b)(3) and (4) (2004), Florida Statutes, in pertinent part provide:
“3. Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for medically necessary nerve conduction testing when done in conjunction with a needle Electromyography procedure and both are performed and billed solely by a physician licensed under Chapter 458, Chapter 459, Chapter 460, or Chapter 461 who is also certified by the American Board of Electrodiagnostic medicine or by a board recognized by the American Board of Medical Specialties . . . shall not exceed 200% of the allowable amount under Medicare part B for year 2001, for the area in which the treatment was rendered . . .
4. Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for medically necessary nerve conduction testing that does not meet the requirements of subparagraph 3, shall not exceed the applicable fee schedule or other payment methodology established pursuant to S.440.13.”
The issues in this case revolve around the statute’s requirements that, in order to pay at the higher rate allowed under Subsection (3), the tests must be “performed and billed solely by a physician licensed under Chapter 458, Chapter 459, Chapter 460, or Chapter 461 who is also certified by the American Board of Electrodiagnostic Medicine or by a board recognized by the American Board of Medical Specialties . . .” More specifically, the resolution of the Defendant’s motion is governed by the Legislature’s intended meaning of “solely” as used in Subsection (3).
The Plaintiff’s argument against the Defendant’s Motion for Summary Disposition is that, if the Defendant were to succeed in its argument that Section 627.736(5)(b)(3), Florida Statutes only allows the higher payment, if the nerve conduction testing is performed by the actual physician, as opposed to the physician’s assistant, such construction would render meaningless Chapters 458 and 459 of the Florida Statutes and Rule 64B156.001, Florida Administrative Code which enable physicians to delegate health care tasks to physician’s assistants. Because of this arguably absurd result, the Plaintiff seeks that this Court construe the statute as allowing physician’s assistants to perform the test and allow the supervising physician to bill and be paid under Subsection (b)3 rather than Subsection (b)4 of the statute, thereby allowing the physician’s assistant services to be paid at the higher rate. The Court declines the Plaintiff’s invitation to engage in statutory construction.
Whenever the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used, without involving construction or speculating as to what the Legislature may have intended. In other words, “the Legislature is assumed to have expressed its intent through the words found in [the] statute.” Zuckerman v. Alter, 615 So.2d 661 (Fla. 1993); Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So.2d 229 (Fla. 4th DCA 2000). “When a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertaining intent. Instead, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” State v. Burris, 875 So.2d 408, 410 (Fla. 2004) (citations omitted). This court does not read Section 627.736(5)(b)(3) as leading to this argued unreasonable result as argued by Plaintiff. This is so because the Florida Legislature has allowed compensation for this type of test when they are not performed by a prescribed physician. The Florida Legislature has allowed for those tests to be performed by physician’s assistants under Chapters 458 and 459, but they are to be compensated at a lower rate under Section 627.736(5)(b)(4), Florida Statutes. Therefore, no unreasonable results exist, as there would be if no compensation was provided, when the Florida Legislature allows physician’s assistants to perform those services under Chapters 458 and 459 and the administrative rules promulgated thereunder.
Moreover, analysis of legislative history is not be needed to determine intent where the language of the statute is clear. Mitchell v. State, 911 So.2d 1211 (Fla. 2005). “[T]he legislative history of a statute is irrelevant where the wording of a statute is clear.” State v. Sousa, 903 So.2d 923, 928 (Fla. 2005).
The clear and unambiguous language of the statute provides that, in order to be reimbursed pursuant to Section 627.736(5)(b)(3), Florida Statutes, the NCV testing and EMG procedure shall be performed and billed solely by a physician licensed under Chapter 458, 459, 460 or 461. The word “ ‘solely’ or ‘only’ is equivalent of the phrase ‘and nothing else.’ The word ‘[s]olely’ is synonymous with . . . ‘exclusively’ ‘entirely’ and ‘wholly’. It means ‘exclusively for,’ . . . ‘to the exclusion of all else’. It ‘leaves no leeway’ ”. Durie v. State, 901 So.2d 171, 175 (Fla. 5th DCA 2005) (citations omitted). In other words, the statute’s meaning is clear that only nerve conduction tests that are solely, that is exclusively and entirely, performed by a physician described within the subsection can be reimbursed pursuant to Section 627.736(5)(b)(3), Florida Statutes. Therefore, the Court finds the wording of the statute is clear and that it does not conflict with the physician’s assistant statutes and rule.
CONCLUSION
The Court acknowledges that compensation of the reduced rates for these tests, under Subsection (5)(b)(4), when performed by a physician’s assistant who is operating under the direct supervision of a physician who himself would be qualified to be compensated at a higher rate and who will analyze the results of these tests, might be seen as unfair or unjust by the physician, since the same Legislature has allowed the physicians to use physician’s assistants to perform this test. However, the decision to so compensate is a matter of policy exclusively within the province of the Legislature who, as opposed to Courts, are not only equipped to deal with and weigh the relevant policy issues, but also to whom the legislative authority is accorded.
For the above stated reasons, it is
ORDERED:
The Defendant’s Motion for Final Summary Disposition is hereby GRANTED.