13 Fla. L. Weekly Supp. 901a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Allowable amount — Adjustment to Florida Medical Consumer Price Index — Court may refer to 2003 amendment to section 627.736(5)(b)(5), clarifying that term “Florida Medical Consumer Price Index” in 2001 statute refers to annual medical care item of Consumer Price Index for All Urban Consumers in South Region, to interpret meaning of CPI language in 2001 statute — No merit to argument that reliance on 2003 amendment to interpret CPI language in 2001 statute would result in unconstitutional retroactive application of 2003 amendment — Correct amount of CPI adjustment calculated — Question certified
OPEN MRI OF MIAMI-DADE LTD. A/A/O CHRISTOPHER ST. FLEUR, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-20136 SP 23 (04). June 27, 2006. Caryn C. Schwartz, Judge. Counsel: Maury L. Udell. Bruce Rogow. Kenneth J. Dorchak, Law Offices of Kenneth J. Dorchak, North Miami. Dean A. Mitchell.
FINAL JUDGMENT
This CAUSE came before the Court, on the motions of both parties, for Summary Judgment, and the Court, having heard all arguments of counsel, reviewing all of the Motions, Responses, Memoranda and Exhibits or Attachments filed or provided to the Court and noting the stipulation of the parties as to the issue before the Court, after reviewing all applicable Florida law, and all other applicable law provided to this Court, hereby DENIES Defendant’s Motion for Final Summary Judgment and GRANTS Plaintiff’s Motion for Final Summary Judgment. The Court finds that as a matter of law, Fla. Stat. § 627.736(5)(b)(5) (2003) clarifies the term “Florida Medical Consumer Price Index,” as referenced in Section 627.736(5)(b)(5), Fla. Stat. (2001). Accordingly, Judgment is hereby entered for the Plaintiff in the amount of $51.67 exclusive of attorney’s fees and costs based on the following:
FACTS
1. This action involves Plaintiff’s claim against Defendant, Progressive American Insurance Company, (hereinafter referred to as “PROGRESSIVE”) for personal injury protection (PIP) benefits specifically relating to a diagnostic MRI (magnetic resonance imaging) performed on CHRISTOPHER ST. FLEUR in connection with an automobile accident on January 28, 2004.
2. Plaintiff, an MRI provider, made a claim for PIP benefits and asserts standing to pursue this claim through an assignment of benefits. Defendant agrees that CHRISTOPHER ST. FLEUR was eligible to receive PIP benefits under an automobile policy issued by PROGRESSIVE and does not dispute Plaintiff’s standing or whether the bill at issue was related to the motor vehicle accident or medically necessary.
3. After the accident, CHRISTOPHER ST. FLEUR underwent an MRI performed at the Plaintiff on March 23, 2004. The Plaintiff submitted a healthcare finance administration form (hereinafter referred to as “HCFA”), to PROGRESSIVE evidencing a charge for an MRI, CPT Code 72148. There is no dispute that the Plaintiff MRI provider was accredited at the time of providing the MRI services at issue. Upon receipt of Plaintiff’s HCFA, PROGRESSIVE pursuant to F.S. 627.736(5)(b)(5) timely tendered payment to Plaintiff in the amount of $1,077.22. Plaintiff’s complaint alleges entitlement to an additional $51.67based on its calculation of the CPI. Defendant has withdrawn all other legal defenses in this case.
4. In calculating the amount to pay, PROGRESSIVE applied one CPI adjustment of 4.3%. Progressive’s corporate representative testified by deposition, that Progressive first began making CPI adjustments to the MRI fee schedule, (see below), as of August 1, 2003.
Defendant’s Argument:
Progressive argues it was not obligated to make any adjustment prior to August 1, 2003 because the reference to the term “Florida Medical Consumer Price index” found in Section 627.736(5)(b)(5) (2001) was vague because at the time of the date of service. Specifically, the Defendant argues that the term “Florida Medical Consumer Price Index” as referenced in Section 627.736(5)(b)(5), Fla. Stat. (2001) referred to a non-existent index.
Legal Discussion
1. Effective in 2001 reimbursement for MRI services from PIP insurers is governed by the provisions of Section 627.736(5)(b)(5), Fla. Stat., also known as the MRI fee schedule.
Section 627.736(5)(b)(5), Fla. Stat. (2001) provided that:
Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida
The MRI fee schedule became effective on June 19, 2001. See State Farm Mutual Automobile Insurance Company v. West Gables Open MRI Services, Inc.,846 So.2d 538 (Fla. 3rd DCA 2003).
2. In 2003 the Florida Legislature amended Section 627.736(5)(b)(5), Fla. Stat., and clarified the meaning of the term “Florida Medical Consumer Price Index” as referenced in the 2001 to reflect that said term was referred to the “annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region”.
The Plaintiff has filed in support of its position an affidavit from economist Hartley Mellish. In said affidavit Mr. Mellish stated that the term “medical consumer price index for Florida” as used in Section 627.736(5)(b)(5), Fla. Stat. (2001) could only refer to the Medical Care Item of the Consumer Price Index for All Urban Consumer in the South for the reason that said statistic is the only generally accepted price index most specific to the entire state of Florida.
Where Legislative intention can be ascertained with reasonable certainty, words in a statute may be altered so as to give it effect and avoid repugnancy or inconsistency with intention. Haworth v. Chapman, 152 So. 663 (Fla. 1934). It is a well-settled proposition of statutory interpretation that a statute should be construed so that effect is given to every clause and every part of a statute. See e.g. Ozark Corp v. Pattishall, 185 So. 333 (Fla. 1938), Chiapetta v. Jordan,16 So.2d 641 (Fla. 1943), State v. Gale Distributors, Inc.,349 So.2d 150 (Fla. 1977), Gretz v. Florida Unemployment Appeals Com’n,572 So.2d 1384 (Fla. 1991).
In addition, courts should avoid statutory interpretations that render part of a statute meaningless. Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000). The courts may use a clarifying amendment to a statutory provision to shed light on the interpretation of the original statute. Palma Del Mar Condominium Assn. #5 of St. Petersburg v. Commercial Laundries of West Florida, Inc.,586 So.2d 315, 317 (Fla. 1991). If the legislature merely intends to clarify what was doubtful and safeguard against misapprehension as to existing law, then an amendment to a statute may be interpreted to clarify the existing law and not enact a subsequent change. State ex. Rel. Szabo Food Serv. Inc. of N.C. v. Dickinson, 286 So.2d 529, 531 (Fla. 1974); U.S. Fire Ins. Co. v. Roberts,541 So.2d 1297 (1st DCA 1989).
Based upon the affidavit of economist Mellish together with the Consumer Price Index Summary and the 2003 revisions to the MRI fee schedule, there exists a reasonable and logical interpretation to the meaning of the term medical Consumer Price Index for Florida. Accordingly, the Court finds that it may refer to the 2003 clarification in interpreting the meaning of the term “Florida Medical Consumer Price Index.”
3. The Defendant argues that reliance upon the 2003 amendment to interpret the meaning and intent of the term “Medical Consumer Price Index” would result an unconstitutional retroactive application of the 2003 amendment.
The Court would note that the services at issue in the matter and all actions underlying this matter occurred in 2004, which is subsequent to the 2003 amendment.
If possible, a court must construe a statute in a manner that upholds the statute, and the Legislature need not define every word in a statute to survive a challenge to the statute’s validity. Miami Dolphins, Ltd. v. Metropolitan Dade County,394 So.2d 981, 988 (Fla. 1981). Where an allegedly unconstitutional statute does not specifically define words of common usage, a Court must construe such words according to their plain and ordinary meaning and must consider whether the words have definite meaning to the class of persons within the purview of the statute. State v. Hoyt,609 So.2d 744 (Fla. 1st DCA 1992).
If a reasonable and practical construction can be given to the language of a statute, or its terms made reasonably certain by reference to other definable sources, it will not be held void for vagueness. Cashatt v. State,873 So.2d 430 (Fla. 1st DCA 2004).
Contrary to the Defendant’s argument on the issue of “retroactive application” the Third District Court of Appeals in the matter of Millennium Diagnostic Imaging Center, Inc. v. Security National Insurance Company,882 So.2d 1027 (Fla. 3rd DCA 2004) relied upon the 2003 amendments to the statute to interpret the meaning and intent of the 2001 statute. In the Millennium matter the Court was considering whether or not the “participating” fee schedule was the Medicare Fee schedule to be utilized as opposed to the high “limiting charge” fee schedule. Millennium stated that although the 2001 version of the MRI fee schedule did not specify that the “participating fee schedule” was the Medicare fee schedule to be utilized under the statute as opposed to the higher “limiting charge” fee schedule, the 2003 revision to the fee schedule clarified that the Legislature intended that the “participating fee schedule” be utilized. In so holding, the Court reasoned that the purpose of the 2003 amendment “was to clarify that the participating fee schedule was the proper fee schedule under the original statute.” Id. at 1030. Millennium cited the Florida Supreme Court decision in Lowry v. Parole & Probation Commission, 473 So.2d 1248 (Fla. 1985) wherein the Supreme Court stated that when “an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a Court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” Id.
Recently, the Second District Court of Appeal adopted the Third District’s reasoning in Millenium Diagnostic Imaging and held that the 2003 clarification of the CPI language could appropriately be used to interpret and apply the CPI increase to dates of service rendered prior to 2003. Clearview Imaging, LLC v. State Farm Mutual Automobile Insurance Company,2006 WL 1041821 (Fla.App. 2 Dist.).1
4. Based upon the foregoing the Court determines that the first CPI adjustment in the amount of 4.8% was to have been made on November 1, 2002 and that the second CPI adjustment of 4.0% was to have been made on August 1, 2003.
5. In making payment of the Plaintiff’s bill, PROGRESSIVE applied one CPI adjustment of 4.3% and made payment in the amount of $1,077.22.
6. The Court determines that the proper amount payable is $1,128.89 leaving a balance due of $51.67.
CONCLUSION
For the reasons set forth above, there is no question of material fact and the court finds that Plaintiff was not properly reimbursed by PROGRESSIVE for its services rendered to the insured pursuant to the Medicare Part B 2001 participating fee schedule with a correct amount for the CPI adjustment. Accordingly, Defendant’s Motion for Final Summary Judgment is hereby DENIED and Plaintiff’s Motion for Summary Judgment is hereby GRANTED. Judgment is Hereby entered for Plaintiff, Open MRI of Miami-Dade Ltd., a/a/o Christopher St. Fleur, in the amount of Fifty One Dollars and Sixty Seven Cents ($51.67), for which let execution issue. The Court reserves jurisdiction to award attorney’s fees pursuant to Sections 627.736(8) and 628.428, Florida Statutes.
CERTIFICATION TO THE THIRD DISTRICT COURT OF APPEAL
Pursuant to Rule 9.040 and Rule 9.160, Florida Rules of Appellate Procedure, the Court hereby certifies the following question to the Third District Court of Appeal as one of great public importance:
Does the 2003 amendment to Section 627.736(5)(b)(5), which has been construed to clarify the index to be applied to the statutory MRI fee schedule, as enacted in 2001, permissibly relate back to 627.736(5)(b)(5) (2001)?
FINAL SUMMARY JUDGMENT FOR PLAINTIFF
For the reasons set forth above, FINAL JUDGMENT is hereby entered in favor of Plaintiff, OPEN MRI OF MIAMI-DADE, LTD. and against Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, such that Plaintiff shall recover from Defendant whose address is 3600 West Commercial Blvd, Suite 100, Fort Lauderdale, Florida, 33309-3324 the amount of $51.67that shall bear interest at the rate of 9%, for all of which let execution issue.
The Court reserves jurisdiction to assess costs and attorneys fees.
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1This decision was issued subsequent to the March 22, 2006 hearing on the Defendant’s motion for summary judgment.