Progressive Express Ins. Co. v. SimonMed Imaging a/a/o Hilleri Brown, 6th District, Case No. 6d23-1145. L.T. Case No. 2020-SC-043217-O, (48 Fla. L. Weekly D990a)

This suit involved a dispute regarding application of the 2007 Participating Physicians Fee Schedule. SimonMed Imaging had performed a cervical MRI on Hilleri Brown in relation to injuries she sustained in an August 12, 2015, motor vehicle accident. Upon receiving SimonMed’s bill, Progressive issued payment under Florida Statute 627.736(5) according to the 2007 Medicare Participating Physicians Fee Schedule. SimonMed then filed suit, arguing that the payment should have been issued pursuant to the 2007 Medicare Part B Non-Facility Limiting Charge, which would have resulted in a higher reimbursement.

During oral arguments, Progressive cited Section 627.736(5)(a)1.f., emphasizing that this section contains three fee schedules and the only one that would apply to the MRI code at issue would be the Participating Physicians Fee Schedule pursuant to 627.736(5)(a)1.f.(I). Progressive then argued that the Limiting Charge itself is not a fee schedule but, rather, is the amount that Medicare permits non-participating medical providers who do not have an assignment of benefits to bill the insured directly. The lower court ruled that they were bound by the Third District Court of Appeals’ decision in Priority Medical Centers, LLC a/a/o Susan Bogiardino v. Allstate Insurance Co., 319 So. 3d 724 (Fla. 3d DCA 2021) and issued judgment in favor of SimonMed.

In analyzing the lower court’s decision, the Sixth District Court of Appeals noted that the 2012 amendment to the PIP statute added two more Medicare Part B fee schedules—the Ambulatory/Clinical Laboratories Fee Schedule, along with the Durable Medical Equipment Fee Schedule—and amended subsection (5)(a)2 to limit the floor for reimbursement to that of the Medicare Part B Fee Schedule for 2007. Taking all of this together, the court ruled that the only logical conclusion is that the Legislature intended for the 2007 floor to apply to the three permissible Medicare Part B fee schedules that are explicitly listed in subparagraph 1.f.

The court then noted that the Limiting Charge is not a fee schedule, thus, the 2007 floor for a diagnostic code would remain the 2007 rate from the Participating Physicians Fee Schedule rate.

This ruling is significant in that it was entered shortly after the Fourth District Court of Appeals’ decision in Progressive Select Insurance Company, Appellant v. In House Diagnostic Services, Inc. a/a/o Darryl Frazier, No. 4D21-2581. (48 Fla. L. Weekly D860g), where the district court reversed itself on the Limiting Charge decision. This case marks the second district court to certify conflict with the Third District Court of Appeals regarding the Limiting Charge issue and sets the stage for future battles between insurance carriers and medical providers in proper payment and exhaustion cases.