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23 Fla. L. Weekly Supp. 563b

Online Reference: FLWSUPP 2306CALOInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Where medical director of clinic was ignorant of what was required of him under Health Care Clinic Act and was noncompliant with those responsibilities, charges by clinic are unlawful and not compensable

Y.H. IMAGING, INC., a/a/o Cesar Alonso, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-21181SP23(06). May 29, 2015. Spencer Multack, Judge.

ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT PURSUANT TOTHE HEALTH CARE CLINIC ACT (F.S. 400.9935)

Y.H. Imaging rendered x-ray service to patient Cesar Alonso on November 23, 2009. A bill for such services was submitted to Progressive American Insurance Company for reimbursement. After the submission of payment to the Plaintiff, Y.H. Imaging instituted this lawsuit to collect further reimbursements for the service. During the course of litigation and discovery, the Defendant filed a Motion for Summary Judgment asserting that Y.H. Imaging was not in compliance with the Florida Health Care Clinic Act¹ (the “HCCA.”) The Court conducted two hearings on this matter. The first related to patient Maria Bernal (case 2012-23297S23) on January 15, 2015 and the instant matter regarding patient Cesar Alonso on April 29, 2015. The issues presented in the Motions for Summary Judgment for both patients are identical.

The HCCA sets forth “Clinic Responsibilities” in F.S. 400.9935 mandating the requirements of a medical director in a clinic as defined in F.S. 400.9905(14)². The law states that the clinic shall appoint a medical director who shall agree in writing to accept legal responsibilities on behalf of the clinic. Particularly, the medical director shall ensure that all health care practitioners at the clinic have active appropriate certification or licensure for the level of care being provided³, ensure compliance with recordkeeping⁴, conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful⁵, and ensure that the clinic publishes a schedule of charges for the medical services offered to patients⁶. The statute further states that all charges or reimbursement claims made by or on behalf of a clinic that is operating in violation of the clinic responsibilities, are unlawful charges, and noncompensable and unenforceable⁷. Additionally, the HCCA sets forth penalties for particular violations to be in enforced by the Agency for Health Care Administration. See F.S.400.995.

The PIP statute, F.S.627.736(5)(b), does not require payment for any service or treatment that was not lawful at the time it was rendered. “Lawful” means, in “substantial compliance will all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services and treatment.” See F.S. 632.732(11).

Progressive American Insurance Company asserts that the medical director, Dr. John Padron, was non-compliant with the “Clinic Responsibilities” at the time of Cesar Alonso’s treatment. Thus, this case turns on the deposition⁸ of the then-acting medical director, Dr. John Padron. Dr. Padron was the medical director of Y.H. Imaging from 2009 to 2010. (15:12-14). Dr. Padron believed his responsibilities as medical director were to check that everything was in order, make sure there were proper licenses, ensure there were prescriptions to take x-rays, and make sure things were running smoothly. (17:1-6). When Dr. Padron would visit the clinic, he would pull random charts and make sure there were proper prescriptions for the chart and that reports were inside the chart. (18:10-13). He could only confirm that the charts were billed properly because he trusted the technicians were running a legitimate business. (19:19-20). Dr. Padron did not look at any of the films to confirm that services were rendered properly. (18,19). Dr. Padron did not do any independent research to verify that the technicians were licensed. (33:10). Dr. Padron was unaware whether rates of service were posted at the clinic and was unaware of the requirement to have rates posted. (35:2-11). Further, Dr. Padron stated that no one explained to him what his duties were as a medical director. (49:18-20). Rather, he was told his services were needed for the business to run in a proper manner. (49:16-20).

The issues in the case sub judice are nearly identical to the facts in State Farm Fire & Cas. Co. v. Silver Star Heath and Rehab, 739 F.3d 579 (11th Cir. 2013) [24 Fla. L. Weekly Fed. C834a]. In Silver Star, the insurance company took the position that it should not have to pay medical bills since the provider did not comply with the licensing requirements of the HCCA. The provider, much like the provider in the case before this Court, averred that the insurance company cannot seek protection from the HCCA, as the HCCA does not expressly state that a violation of its licensing requirements can be determined by a court in a civil action.

The Court in Silver Star disagreed with the Plaintiff’s position and reasoned that, “Because courts are traditional forums for determining the lawfulness, compensability, and enforceability of claims, it would make no sense to read into a statute a provision that courts lack the authority to decide the crucial question on which the lawfulness, compensability, and enforceability of a claim depends, which in this case is whether the exemption Silver Star asserts applied, excusing its failure to obtain a license.” Id at 583. See also Active Spine Centers, LLC v. State Farm Fire & Casualty Co., 911 So.2d 241 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D2286a] (clinic was not entitled to payment of personal injury protection (PIP) benefits by automobile insurer for unlawful treatment of accident victims during registration lapse.) This Court finds both Silver Star and Active Spine Centers to be instructive and authoritative on the law and further looks to the intent of the HCCA when constructed.

It is a fundamental principle of statutory interpretation that legislative intent is the “polestar” that guides this Court’s interpretation. See State v. J.M., 824 So.2d 105(Fla. 2002) [27 Fla. L. Weekly S621a]; Reynolds v. State, 842 So.2d 46 (Fla. 2002) [27 Fla. L. Weekly S1050a]. We endeavor to construe statutes to effectuate the intent of the Legislature. See White v. Pepsico, 568 So.2d 886 (Fla. 1990). To discern legislative intent, we look “primarily” to the actual language used in the statute. See Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000) [25 Fla. L. Weekly S31a]. Further, “when the statute is clear and unambiguous; courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61 (Fla. 2005) [30 Fla. L. Weekly S143a].

Clearly, the intent of the Legislature, when reading F.S. 627.736 and F.S. 400.9935, in pari materia, is to restrict compensation to a clinic that is not in substantial compliance with Florida Statutes and whose treatment is otherwise not legally rendered. The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent. Fla. Dep’t of State v. Martin, 916 So.2d 763 (Fla. 2005) [30 Fla. L. Weekly S780a]. As part of this analysis, the Court must address the legislation “as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence.” Bautista v. State, 863 So.2d 1180 (Fla. 2003) [28 Fla. L. Weekly S849a] (quoting State v. Anderson, 764 So.2d 848 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1862a]).

One only has to look to the “Florida Motor Vehicle Insurance Affordability Reform Act,” 2003 Fla. Sess. Law Serv. Ch. 2003-411 to see the Legislature’s concern as to motor vehicle insurance fraud and inappropriate medical treatment. The “Health Care Clinic Act” was contemporaneously enacted as part of the “Florida Motor Vehicle Insurance Affordability Reform Act” to combat the, “the fraud and abuse that has permeated the PIP insurance market.” Specifically the Legislature was concerned about,

“Motor vehicle insurance fraud and abuse, other than in the hospital setting, whether in the form of inappropriate medical treatments, inflated claims, staged accidents, solicitation of accident victims, falsification of records, or in any other form, has increased premiums for consumers and must be uncovered and vigorously prosecuted. The problems of inappropriate medical treatment and inflated claims for PIP have generally not occurred in the hospital setting.”⁹

Furthermore, the enforcement of the HCCA is criminal, administrative, injunctive, and economic, depending on the violation. For example, a person who operates an unlawful clinic commits a felony in the third degree. F.S.400.913(2). If a clinic violates a provision of the Act, the agency may impose administrative penalties against clinics of up to $5,000 per violation. F.S.400.921(1). If necessary, an injunction may be issued to protect clinic patients from life-threatening situations. F.S. 400.917. If charges or reimbursement claims made by or on behalf of a clinic are in violation of its clinic responsibilities, the charges are unlawful, noncompensable, and unenforceable. F.S. 400.915. Evidently, the Legislature has elected multiple venues in which to enforce the Act and neither F.S. 627.732(11) nor the HCCA require a finding by another court, agency, or the like, as a condition precedent to enforce the law.

Frankly, it would fly in the face of common sense that a Court hearing a matter involving PIP benefits would be divested of the jurisdiction to make the determination whether those PIP benefits were lawful in accord with the HCCA. Again, the statute makes no reference that the determination of lawfully rendered service is exclusive to the agency or that agency involvement is condition precedent to a Court’s determination of compliance. Clearly, the Legislature intended to prohibit clinics rendering unlawful treatment from being compensated for such. The Act sets forth explicit guidelines, which unless substantially complied with, renders treatment noncompensable and unenforceable.

It is evident from Dr. Padron’s deposition that he was ignorant of what was required of him under F.S. 400.9935 and equally non-compliant. Dr. Padron failed to ensure that all practitioners providing health care services or supplies maintained current active and unencumbered Florida licenses (F.S. 400.9935(1)(b)), failed to ensure that all health care practitioners at the clinic have active appropriate certification of licensure for the level of care being provided (F.S. 400.9935(1)(d)), and failed to conduct systematic reviews of clinic billings to ensure that the billings were not (F.S. 400.9935(1)(g)).

There is only one result this Court can reach with a plain reading of Florida Statutes 627.732(11), 627.736(5)(b)(1)(b), and 400.9935 in accordance with each other, and the deposition of Dr. Padron. The Court finds that Y.H. Imaging was not in substantial compliance with Florida Statutes while Dr. Padron was acting as the medical director. Thus, the charges in this matter are unlawful charges, noncompensable and unenforceable. The Defendant’s Motion for Summary Judgment is GRANTED.

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¹F.S. 400.990-400.995

²Y.H. Imaging meets the definition of a clinic as defined per this statue.

³F.S. 400.9935(1)(d)

⁴F.S. 400.9935(1)(f)

⁵F.S. 400.9935(1)(g)

⁶F.S. 400.9935(1)(i)

⁷F.S. 400.9935(3)

⁸The deposition of Dr. John Padron was taken on August 1, 2013 in case numbers 11-5953COSO60 and 11-8935SP21.

⁹2003 Fla. Sess. Law Serv. Ch. 2003-411, Sec.1